Madras High Court
M/S.Mercedes - Benz Financial Services vs Svb Infra Projects And Another on 13 November, 2020
Author: Abdul Quddhose
Bench: Abdul Quddhose
Arb.Appln.No.300 of 2023
Arb.Appln.No.300 of 2023
ABDUL QUDDHOSE, J.
M/s.Mercedes - Benz Financial Services India Pvt. Ltd. .. Applicant vs
1. SVB Infra Projects and another ..Respondents
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This application has been filed under Section 9 of the Arbitration and Conciliation Act, 1996 seeking for appointment of Advocate Commissioner, to repossess the vehicles morefully described in the schedule to the Judges Summons.
2. The respondents have availed financial facility from the applicant for the purchase of vehicles morefully described in the schedule to the Judges Summons under a Loan cum Hypothecation Agreement dated 13.11.2020. Since the respondents have committed default in the repayment of the loan, the applicant had initiated arbitration in accordance with the arbitration clause contained in the Loan cum Hypothecation Agreement, dated 13.11.2020. The sole Arbitrator appointed by the applicant has also passed an Arbitral Award dated 23.02.2022 directing the respondents to pay 1/5 https://www.mhc.tn.gov.in/judis Arb.Appln.No.300 of 2023 certain sums of money on account of non repayment of the loan by the respondents. A categorical finding has been given by the Arbitrator that the respondents have committed breach of contract under the Loan cum Hypothecation Agreement, dated 13.11.2020. Under the Loan cum Hypothecation Agreement, dated 13.11.2020, the applicant is empowered to repossess the vehicles morefully described in the schedule to the Judges summons, which were hypothecated to the applicant as per the terms and conditions of the Loan cum Hypothecation Agreement dated 13.11.2020. The applicant has expressed its difficulty in repossessing the vehicles on its own. Under those circumstances, this application has been filed under Section 9 of the Arbitration and Conciliation Act, 1996. The Arbitral Award, dated 23.02.2022 passed in favour of the applicant has also attained finality as the said Award has not been challenged till date by the respondents.
3. The respondents have been served through Substituted Service and their names have also been printed in the cause list, today. Since a prima facie case has been made out by the applicant for the appointment of an Advocate Commissioner by this Court to repossess the vehicles morefully described in the Judges Summon, this application is disposed of by 2/5 https://www.mhc.tn.gov.in/judis Arb.Appln.No.300 of 2023 appointing an Advocate Commissioner to repossess the vehicles morefully described in the schedule to the Judges Summon wherever they are available. The balance of convenience is also in favour of the applicant for appointment of Advocate Commissioner to repossess the vehicles and irreparable loss would be caused to the applicant if the vehicles are not repossessed.
4.For the foregoing reasons, this Court issues the following directions:
a)Mr.K.A. Prabaharan, Advocate, having Office at No.223, N.S.C. Bose Road, Y.M.C.A. Building, II Floor, Chennai - 600 001, (Mobile No.9710916685) is appointed as an Advocate Commissioner to repossess the vehicle morefully described in the schedule to the Judges summons.
b)The Advocate Commissioner is permitted to obtain police aid and break open of the premises in case the vehicle is kept in a locked premises, in the presence of the Police, after taking proper inventory.
c)The Advocate Commissioner shall be paid an initial remuneration of Rs.15,000/- and the same shall be paid within a period of one week from the date of receipt of a copy of this order or before the Advocate Commissioner execute the Warrant of Commission in accordance with the 3/5 https://www.mhc.tn.gov.in/judis Arb.Appln.No.300 of 2023 directions given by this Court. The Boarding, lodging and travel expenses shall be paid by the applicant to the Advocate Commissioner for executing the warrant of Commission.
5. Post the matter on 17.10.2023 'for reporting compliance'.
19.09.2023 vsi2 4/5 https://www.mhc.tn.gov.in/judis Arb.Appln.No.300 of 2023 ABDUL QUDDHOSE, J.
vsi2 Arb.Appln.No.300 of 2023 19.09.2023 5/5 https://www.mhc.tn.gov.in/judis