Delhi District Court
Suit No. 232/09 Icici Bank vs . Jatin Aggarwal on 27 April, 2009
- 1-
Suit No. 232/09 ICICI Bank Vs. Jatin Aggarwal
27.04.09 Present : Sh. Pankaj Verma Counsel for plaintiff.
Record perused throughly.
Present suit is filed under order 37 CPC alongwith one
one application under order 1 CPC for appointment of receiver. Arguments on
the maintainability of the suit u/sec. 37 CPC as well as on application under
order 40 Rule 1 CPC heard.
Perusal of the record reveals that the present suit is filed
under order 37 CPC . Order 37 CPC provides different procedure from the
other procedure to be followed in case of ordinary suit for recovery. Order 37
CPC provides for summary procedure and this order 37 CPC is considered to
be a code in itself and the procedure have been defined under this particular
order itself. One of the relevant clause of this order 37 CPC which is relevant
and applicable to the present suit is as under :-
1. on a written contract, or
2. on an enactment, where the sum sought to be recovered is a
fixed sum of money or in the nature of a debt other than a penalty; or
The averment so made in the plaint filed by the plaintiff is also
perused. It is revealed that by way of this suit the plaintiff has prayed for
recovery for an amount of Rs. 223,860.51/- The notice so given to the
defendant is also perused wherein the only request to make the payment
203,432.00/- have been made. There is another document reflecting the
taken amount claimed after the loan agreement is annexed with the plaint
herein the total amount shown as paid 223,860.51/- . This head is explained
in this para itself wherein certain heads have been shown as late payment
penalty and other office charges including cheque bouncing charges for
closer charges . I am of the considered opinion , after careful perusal of the
- 2-
ambit under order 37 Rule 1 and 2 CPC that these heads are not covered
under order 37 CPC to be claimed. Order 37 CPC provides only for recovery
of a fixed amount or liquidated sum of money which is other than penalty of
and other charges. Under these circumstances the present suit is treated as
ordinary suit for recovery.
The application is disposed of vide separate order sheet. The
application is dismissed. Defendant be summoned on filing of PF/RC for
04.06.09
(Prashant Kumar)
CCJ cum ARC /Delhi
27.04.09
- 1-
IN THE COURT OF SH. PRASHANT KUMAR CCJ/ARC ROHINI COURTS
DELHI
SUIT NO. 232/09
ICICI BANK LTD.
Having its registered office at :
Landmark, Race Course Circle , Vadodra -390007.
Having its Branch Office at :
Plot No. 7, S.D.Tower,
Sector 08, Rohini,
New Delhi -110085.
Though its Authorised Representative
Mr. Anil Panchal
(PLAINTIFF)
Versus
Jatin Aggarwal
S/o Bhupender Kumar
R/o 432 Lancer Road Double Storey
Timar Pur Delhi 110035
Also At :
Jatin Aggarwal
M/s Jain Enterprises Shop No. 11
2nd Floor Gopal Market
Chandani Chowk, Delhi 110006
(DEFENDANT)
ORDER
1. By this Order I shall dispose of the application filed by the plaintiff seeking appointment of Ex-parte receiver under oder 40 Rule 1 CPC. The facts in brief narrated by the counsel for plaintiff that the defendant had
- 2- approached the plaintiff bank and took a loan for the specified amount as mentioned in the plaint alongwith the terms and conditions for the said facility, executing deed of hypothecation and irrevocable power of attorney with the plaintiff bank . The said loan was repaid in equated monthly installments . After the disbursement of loan the vehicle so purchased was hypothicated with the plaintiff. The vehicle of the defendant is registered in his name and as stated above his hypothication with the bank as per the loan agreement there was a default of payment of loan hence by way of legal notice the defendant was asked to repay the due installments as well as subsequent installment failing which the agreement was to be canceled. No payment was made hence the demand for the outstanding amount was made from the defendant for which he failed to clear his dues in time.
2. Thus, by way of this present application filed alongwith the suit , the counsel for plaintiff has prayed that one receiver be appointed under order 40 Rule 1 CPC by giving power of attorney of the vehicle in question in his possession and to hold the vehicle in question till the further directions of Court during the pendency of the suit. During arguments the counsel for plaintiff has stated that there are exceptional circumstances in which there are chances that defendant might sell the vehicle or transfer the same in the name of another person and in that circumstances the chances for recovery of the amount claimed from him would be difficult. The counsel for plaintiff has further stated that he has a good chance of succeeding in the case against the defendant.
3. There are certain provision which are guiding factors while considering the prayer for appointment of a receiver .
1. The appointment of the receiver pending in a suit is a matter resting in the discretion of the court.
2. The court could not appoint a receiver except upon proof on the plaintiff through prima facie he has a very excellent chance of -3- succeeding in the suit.
3. The plaintiff show a case of adverse conflicting claims to property but he must show some emergency or danger or loss demanding immediate action and of his own rights. He must reasonably be clearand free from doubt. The element of danger is an important consideration.
4. Order for appointing a receiver will not be made where it has the fact of depriving a defendant of de-facto possession since that might cause irrepairable loss . It would be different where the property is shown to be in medio i.e. to show in the enjoyment of anyone.
5. The court on the application made for an appointment of a receiver looks to the conduct of party who makes an application and shall refuse to interfere unless his conduct has been free from blame.
6. The principles regarding the appointment of a receiver are well settled . The receiver can only be appointed when it is just and convenient and also when there is prima facie case of the plaintiff and the case calls for taking of some urgent measures like appointment of receiver. It was observed in Vijay Mathur Vs. State of U.P. AIR 2008 Supreme Court 3513. In this case Hon'ble Supreme Court of India had observed that where the defendant was any physical possession of the property , the appointment of receiver without adverting to any of the questions was held unjustified. It is very difficult to allow a prayer for appointing a receiver, which would have inevitable result of divesting the defendants of the custody of the property merely on asking. In Shakuntala Devi Kapoor Vs. Pardeep Kapoor CHN, Page 50 (DB) 1995 . It was observed that a mere filing of the suit itself does not entitle a plaintiff or a party thereto, to get a receiver appointed, on the basis of a assertion that, ultimately in his suit, he may succeed and as such his right has to be protected by appointment of a receiver.
7. Receiver may be appointed where some of the parties
- 4- are in exclusive possession of or in sole possession of the property to the exclusion of other and are enjoying and receiving the benefits and profits arising from their property , excluding their companion or co-owners from the receipt of any portion.
8. It has further been observed in S. Saleem Bi Vs. Pyari Begum (2000) 9 SSC 506 that a receiver can only be appointed where it is just and convenient and also when there is a prima facie case in favour of the applicant, and the case calls for taking urgent matter, especially when the opposite party is in possession of disputed property. In another case Ram Ekbali Singh Vs. Sheo Pujan Singh AIR 1997 (Patna) 164 where the case is not found fit for appointment of receiver, the Court is not justified in directing the defendant to furnish the security when the plaintiff has not prayed for it.
9. The words "just and convenient" would denote what is practicable and what the interests of justice require. The wide discretion of the court in the matter of appointment of receiver must be sound and reasonable [Vijay Vs. B.K.Thapper, A 1976 J & K 30] (i) Plaintiff applying for a receiver must show prima facie a strong case and good title to the property (ii) Possession of a bona fide purchaser of a property should not be disturbed without substantial and compelling reasons. (iii) application should be made promptly
10. The counsel for plaintiff has argued at length and has relied upon certain authorities, 139 (2007) Delhi Law Times 501 Delhi High Court . The authorities so relied upon are perused throughly. They are of general implications and are laying down the guiding principals while appointing a receiver in a case . However, all the authorities so relied upon by the plaintiff also lays down the above stated five guiding principals which should be considered before passing any order. The principal of "just and convenient" and prima facie case should also be established by the plaintiff.
- 5- This fact is not disputed by the plaintiff . In the present case however with regard to the exigencies and urgent matters the plaintiff has not shown anything on record that there are compelling emergent circumstances under which an Ex-parte order for appointing a receiver is passed in his favour i.e. without giving notice to the defendant.
11. Perusal of the record and the everment so made in the suit as well as the arguments so advanced by the counsel for plaintiff does not reflects any exigency or the circumstances on the basis of ex-parte appointment of receiver can be granted in his favour. The counsel for plaintiff has been asked specifically to explain the exigency of this case for appointing the receiver Ex-parte i.e. without giving the notice to the other party. Same has not been explained . The only thing stated by the counsel for plaintiff that the plaintiff may suffer loss if the vehicle is transferred or third party interest is created therein. It has not been explained by the counsel for plaintiff how the plaintiff is going to suffer a loss and that loss is irrepairable loss which cannot be compensate in terms of money where no such Ex-parte order is to be passed.
12. It has been observed in Ram Ekbali Singh Vs. Sheo Pujan Singh AIR 1997 (Patna) 164 that appointment of receiver must not be mere weapon of coercive and Court does not exercise its discretionary power in the absence of strong case. In another case Smt. Kusum Sanghi Vs. Raj Kishan Dass (V) (DB) 2001 (2) RCR Civil 462 . This case was pertaining to appointment of receiver in respect of immovable property. Hon'ble High Court of Delhi observed appointment of receiver in such a case is one of the harshest remedy . The court can appoint receiver only when it appears "just and convenient" to do so and the discretion cannot be exercised the arbitrarily . It must be exercised judicially and with caution . The amount is merely to preserve the property and to preserve the benefits , if any, flowing from it. Normally, a person in bona fide of the possession should not be
- 6- disturbed. Plaintiffs own rights must be reasonably clear and beyond doubt and lastly the Court by appointing receiver should not arrived at any final decision.
13. In the present case the plaintiff has not been able to explain the exigency or urgency in this case for appointment of receiver Ex- parte. Notice in this case to the defendant is yet be served. The case is at the very initial stage. Under these circumstances I am of the considered opinion that as the essential requirement for passing any order for appointment of receiver is not fulfilled properly by the plaintiff. The balance of convenience under these circumstances is equally divided on both the parties and cannot be said to be in favour of the plaintiff and it cannot be considered that the case is tilting in favour of the plaintiff and plaintiff cannot be said to have a very good position that he shall win a case on merits and the case is likely to be decreed in his favour.
14. In the light of these facts and circumstances and the arguments from the side of the plaintiff I am of the opinion that no exigency or exceptional circumstances have been shown by the counsel for plaintiff for appointment the receiver in his case. Thus, the prayer so made in the application is declined. The application is dismissed.
Announced in Open Court (Prashant Kumar)
Dated 27.04.09 CCJ/ARC/ROHINI
Delhi
- 1-
Suit No. 231/09 ICICI Bank Vs. Rajpal Singh
27.04.09 Present : Sh. Pankaj Verma Counsel for plaintiff.
Record perused throughly.
Present suit is filed under order 37 CPC alongwith one one application under order 1 CPC for appointment of receiver. Arguments on the maintainability of the suit u/sec. 37 CPC as well as on application under order 40 Rule 1 CPC heard.
Perusal of the record reveals that the present suit is filed under order 37 CPC . Order 37 CPC provides different procedure from the other procedure to be followed in case of ordinary suit for recovery. Order 37 CPC provides for summary procedure and this order 37 CPC is considered to be a code in itself and the procedure have been defined under this particular order itself. One of the relevant clause of this order 37 CPC which is relevant and applicable to the present suit is as under :-
1. on a written contract, or
2. on an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or The averment so made in the plaint filed by the plaintiff is also perused. It is revealed that by way of this suit the plaintiff has prayed for recovery for an amount of Rs. 220,967.86/- The notice so given to the defendant is also perused wherein the only request to make the payment 224979/- have been made. There is another document reflecting the taken amount claimed after the loan agreement is annexed with the plaint herein the total amount shown as paid 220,967.86/- . This head is explained in this para itself wherein certain heads have been shown as late payment penalty and other office charges including cheque bouncing charges for closer charges . I am of the considered opinion , after careful perusal of the
- 2-
ambit under order 37 Rule 1 and 2 CPC that these heads are not covered under order 37 CPC to be claimed. Order 37 CPC provides only for recovery of a fixed amount or liquidated sum of money which is other than penalty of and other charges. Under these circumstances the present suit is treated as ordinary suit for recovery.
The application is disposed of vide separate order sheet. The application is dismissed. Defendant be summoned on filing of PF/RC for 04.06.09 (Prashant Kumar) CCJ cum ARC /Delhi 27.04.09
- 1- IN THE COURT OF SH. PRASHANT KUMAR CCJ/ARC ROHINI COURTS DELHI SUIT NO. 231/09 ICICI BANK LTD.
Having its registered office at :
Landmark, Race Course Circle , Vadodra -390007. Having its Branch Office at :
Plot No. 7, S.D.Tower, Sector 08, Rohini, New Delhi -110085.
Though its Authorised Representative Mr. Anil Panchal (PLAINTIFF) Versus
1. Rajpal Singh Borrower S/o Bahoran Singh R/o House No. 1538, Sector 29, Park View Apartment, NOIDA- 201301
2. Sanjay Singh Co-Borrower House No. 1538, Sector 29, Park View Apartment NOIDA (DEFENDANT) ORDER
1. By this Order I shall dispose of the application filed by the plaintiff seeking appointment of Ex-parte receiver under oder 40 Rule 1 CPC.
The facts in brief narrated by the counsel for plaintiff that the defendant had
- 2- approached the plaintiff bank and took a loan for the specified amount as mentioned in the plaint alongwith the terms and conditions for the said facility, executing deed of hypothecation and irrevocable power of attorney with the plaintiff bank . The said loan was repaid in equated monthly installments . After the disbursement of loan the vehicle so purchased was hypothicated with the plaintiff. The vehicle of the defendant is registered in his name and as stated above his hypothication with the bank as per the loan agreement there was a default of payment of loan hence by way of legal notice the defendant was asked to repay the due installments as well as subsequent installment failing which the agreement was to be canceled. No payment was made hence the demand for the outstanding amount was made from the defendant for which he failed to clear his dues in time.
2. Thus, by way of this present application filed alongwith the suit , the counsel for plaintiff has prayed that one receiver be appointed under order 40 Rule 1 CPC by giving power of attorney of the vehicle in question in his possession and to hold the vehicle in question till the further directions of Court during the pendency of the suit. During arguments the counsel for plaintiff has stated that there are exceptional circumstances in which there are chances that defendant might sell the vehicle or transfer the same in the name of another person and in that circumstances the chances for recovery of the amount claimed from him would be difficult. The counsel for plaintiff has further stated that he has a good chance of succeeding in the case against the defendant.
3. There are certain provision which are guiding factors while considering the prayer for appointment of a receiver .
1. The appointment of the receiver pending in a suit is a matter resting in the discretion of the court.
2. The court could not appoint a receiver except upon proof on the plaintiff through prima facie he has a very excellent chance of -3- succeeding in the suit.
3. The plaintiff show a case of adverse conflicting claims to property but he must show some emergency or danger or loss demanding immediate action and of his own rights. He must reasonably be clearand free from doubt. The element of danger is an important consideration.
4. Order for appointing a receiver will not be made where it has the fact of depriving a defendant of de-facto possession since that might cause irrepairable loss . It would be different where the property is shown to be in medio i.e. to show in the enjoyment of anyone.
5. The court on the application made for an appointment of a receiver looks to the conduct of party who makes an application and shall refuse to interfere unless his conduct has been free from blame.
6. The principles regarding the appointment of a receiver are well settled . The receiver can only be appointed when it is just and convenient and also when there is prima facie case of the plaintiff and the case calls for taking of some urgent measures like appointment of receiver. It was observed in Vijay Mathur Vs. State of U.P. AIR 2008 Supreme Court 3513. In this case Hon'ble Supreme Court of India had observed that where the defendant was any physical possession of the property , the appointment of receiver without adverting to any of the questions was held unjustified. It is very difficult to allow a prayer for appointing a receiver, which would have inevitable result of divesting the defendants of the custody of the property merely on asking. In Shakuntala Devi Kapoor Vs. Pardeep Kapoor CHN, Page 50 (DB) 1995 . It was observed that a mere filing of the suit itself does not entitle a plaintiff or a party thereto, to get a receiver appointed, on the basis of a assertion that, ultimately in his suit, he may succeed and as such his right has to be protected by appointment of a receiver.
7. Receiver may be appointed where some of the parties
- 4- are in exclusive possession of or in sole possession of the property to the exclusion of other and are enjoying and receiving the benefits and profits arising from their property , excluding their companion or co-owners from the receipt of any portion.
8. It has further been observed in S. Saleem Bi Vs. Pyari Begum (2000) 9 SSC 506 that a receiver can only be appointed where it is just and convenient and also when there is a prima facie case in favour of the applicant, and the case calls for taking urgent matter, especially when the opposite party is in possession of disputed property. In another case Ram Ekbali Singh Vs. Sheo Pujan Singh AIR 1997 (Patna) 164 where the case is not found fit for appointment of receiver, the Court is not justified in directing the defendant to furnish the security when the plaintiff has not prayed for it.
9. The words "just and convenient" would denote what is practicable and what the interests of justice require. The wide discretion of the court in the matter of appointment of receiver must be sound and reasonable [Vijay Vs. B.K.Thapper, A 1976 J & K 30] (i) Plaintiff applying for a receiver must show prima facie a strong case and good title to the property (ii) Possession of a bona fide purchaser of a property should not be disturbed without substantial and compelling reasons. (iii) application should be made promptly
10. The counsel for plaintiff has argued at length and has relied upon certain authorities, 139 (2007) Delhi Law Times 501 Delhi High Court . The authorities so relied upon are perused throughly. They are of general implications and are laying down the guiding principals while appointing a receiver in a case . However, all the authorities so relied upon by the plaintiff also lays down the above stated five guiding principals which should be considered before passing any order. The principal of "just and convenient" and prima facie case should also be established by the plaintiff.
- 5- This fact is not disputed by the plaintiff . In the present case however with regard to the exigencies and urgent matters the plaintiff has not shown anything on record that there are compelling emergent circumstances under which an Ex-parte order for appointing a receiver is passed in his favour i.e. without giving notice to the defendant.
11. Perusal of the record and the everment so made in the suit as well as the arguments so advanced by the counsel for plaintiff does not reflects any exigency or the circumstances on the basis of ex-parte appointment of receiver can be granted in his favour. The counsel for plaintiff has been asked specifically to explain the exigency of this case for appointing the receiver Ex-parte i.e. without giving the notice to the other party. Same has not been explained . The only thing stated by the counsel for plaintiff that the plaintiff may suffer loss if the vehicle is transferred or third party interest is created therein. It has not been explained by the counsel for plaintiff how the plaintiff is going to suffer a loss and that loss is irrepairable loss which cannot be compensate in terms of money where no such Ex-parte order is to be passed.
12. It has been observed in Ram Ekbali Singh Vs. Sheo Pujan Singh AIR 1997 (Patna) 164 that appointment of receiver must not be mere weapon of coercive and Court does not exercise its discretionary power in the absence of strong case. In another case Smt. Kusum Sanghi Vs. Raj Kishan Dass (V) (DB) 2001 (2) RCR Civil 462 . This case was pertaining to appointment of receiver in respect of immovable property. Hon'ble High Court of Delhi observed appointment of receiver in such a case is one of the harshest remedy . The court can appoint receiver only when it appears "just and convenient" to do so and the discretion cannot be exercised the arbitrarily . It must be exercised judicially and with caution . The amount is merely to preserve the property and to preserve the benefits , if any, flowing from it. Normally, a person in bona fide of the possession should not be
- 6- disturbed. Plaintiffs own rights must be reasonably clear and beyond doubt and lastly the Court by appointing receiver should not arrived at any final decision.
13. In the present case the plaintiff has not been able to explain the exigency or urgency in this case for appointment of receiver Ex- parte. Notice in this case to the defendant is yet be served. The case is at the very initial stage. Under these circumstances I am of the considered opinion that as the essential requirement for passing any order for appointment of receiver is not fulfilled properly by the plaintiff. The balance of convenience under these circumstances is equally divided on both the parties and cannot be said to be in favour of the plaintiff and it cannot be considered that the case is tilting in favour of the plaintiff and plaintiff cannot be said to have a very good position that he shall win a case on merits and the case is likely to be decreed in his favour.
14. In the light of these facts and circumstances and the arguments from the side of the plaintiff I am of the opinion that no exigency or exceptional circumstances have been shown by the counsel for plaintiff for appointment the receiver in his case. Thus, the prayer so made in the application is declined. The application is dismissed.
Announced in Open Court (Prashant Kumar)
Dated 27.04.09 CCJ/ARC/ROHINI
Delhi