Calcutta High Court
Srei Equipment Finance Ltd vs Vrcl Limited & Anr on 8 December, 2017
Equivalent citations: AIRONLINE 2018 CAL 221
Author: Ashis Kumar Chakraborty
Bench: Ashis Kumar Chakraborty
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COD 1
AP 1049 of 2017
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
SREI EQUIPMENT FINANCE LTD.
Versus
VRCL LIMITED & ANR.
BEFORE:
The Hon'ble JUSTICE ASHIS KUMAR CHAKRABORTY
Date : 8th December, 2017.
Mr. Swatarup Banerjee,Advocate appears.
Ms. Neelina Chatterjee,Advocate appears.
Mr. Debdulal Halder,Advocate appears.
Mr. Sanjoy Banerjee,Advocate appears.
Mr. G.Patra,Advocate appears.
The Court :- In this application under Section 9 of the Arbitration and
Conciliation Act, 1996, as amended by Act 3 of 2016 (in short "the Act of 1996")
the petitioner has prayed for appointment of a Receiver over and in respect of 800
hypothecated assets, out of which 792 assets are lying with the respondents and
the balance 8 assets are lying with the Receiver appointed by an erstwhile arbitrator.
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At the very outset, Mr. Sanjay Banerjee, learned Advocate appearing for the respondent raised serious objection with regard to the maintainability of this application in view of the provisions contained in Section 9(3) of the Act of 1996. He also prayed for an opportunity to file an affidavit-in-opposition to this application on behalf of the respondent.
By an order dated November 23, 2017 passed in GA No. 3577 of 2017, with APO 516 of 2017 this Court removed the erstwhile arbitrator named in prayer (a) of this application and passed a specific direction to the Receiver appointed by the said arbitrator to make over possession of the 8 hypothecated assets to the respondents. With consent of the parties, a new arbitrator was appointed for adjudication of the disputes between them. The petitioner, however, unsuccessfully assailed the said order dated November 23, 2017, by filing a special leave petition before the Supreme Court. While dismissing the special leave petition, by order dated December 1, 2017 the Supreme Court extended the time for delivery of the 8 assets by the Receiver appointed by the erstwhile rbitrator to the respondents till today, that is, December 8, 2017.
From the averments made in the application and prayer (a) of this application it is evident that the petitioner is not inclined to comply with the order dated December 1, 2017 passed by the Supreme Court and it has prayed for appointment of the Receiver over all the assets including the assets which are still lying with the Receiver appointed by the erstwhile arbitrator. Further, it is the case of the petitioner that it has approached the new arbitrator appointed by this Court on November 23, 2017 with this application , who has not yet fixed an 3 early date for hearing and as such, there is compelling circumstances for filing this application.At the same time, in paragraph 63 of the application the petitioner has also made out a case that remedy under Section 17 of the Act of 1996 will not provide an efficacious remedy to itself. In this connection, it is also to be noted that petitioner itself moved an application before the erstwhile Arbitrator, under Section 17 of the Act of 1997 and obtained an order dated November 15, 2017 for appointment of a Receiver to take possession of the alleged hypothecated assets, in terms whereof the Receiver took possession of the assets which have even been directed by the Supreme Court to be returned to the respondent. Further, in this application for appointment of Receiver, when the principles of order XL of the Code of Civil Procedure is applicable, there is no statement by the petitioner about the place where the alleged 792 hypothecated assets are lying.
Although, Mr. Banerjee, learned advocate appearing for the petitioner, submitted that hearing of this application may be adjourned till December 11, 2017 and in the meantime, the petitioner shall deliver possession of the 8 assets in terms of the order dated December 01, 2017 passed by the Supreme Court, but in view of the facts of the case more so, when the maintainability of this application is seriously questioned by the respondent, I find no reason to accept the said submission of the petitioner.
For the reasons as aforesaid, I do not find any scope to pass any ad-interim order in terms of prayer (a) of this application for appointment of a Receiver. The respondents are directed to file their affidavit-in-opposition to this application 4 within December 14, 2017; reply, if any, thereto be filed within December 20, 2017.
Let this application appear under the heading "Adjourned Motion" on December 21, 2017.
The point of maintainability of this application will be decided at the final hearing.
It is, however, made clear that pendency of this application will not prevent the new arbitrator appointed on November 23, 2017 to proceed with the arbitral proceeding between the parties.
Urgent certified website copies of this order, if applied for, be supplied to the petitioner upon compliance with all requisite formalities.
(ASHIS KUMAR CHAKRABORTY, J.) S.Chandra