Delhi High Court - Orders
Moneywise Financial Services Pvt Ltd vs Western India Transport Finance ... on 22 April, 2021
Author: Vibhu Bakhru
Bench: Vibhu Bakhru
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P.(I) (COMM.) 16/2021 & IA 725/2021
MONEYWISE FINANCIAL SERVICES
PVT LTD ..... Petitioner
Through Mr Shreyas jain, Mr Prachi Gupta,
Mr Prince Jain, Ms Swastika Kumari, Advocates.
versus
WESTERN INDIA TRANSPORT FINANCE
COMPANY PRIVATE LIMITED & ORS. ..... Respondents
Through Mr Tishampati Sen, Advocate with
Ms Riddhi Sancheti, Ms Abhishree Saujanya,
Mr Devesh Juvekar, Mr Ashish Parwani,
Mr Vibhor Kapoor, Advocates.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
ORDER
% 22.04.2021 [Hearing held through videoconferencing]
1. The petitioner has filed the present petition under Section 9 of the Arbitration and Conciliation Act, 1996 (hereafter the „A&C Act‟), inter alia, praying as under:-
"a) Allow the present application / petition filed under Section 9 of Arbitration & Conciliation Act, 1996;
b) Pass an ex-parte ad-interim order in favour of petitioner by attaching bank account of respondents to an extent of Rs.3,61,43,795 /-Signature Not Verified digitally signed by:DUSHYANT RAWAL
c) Pass an order to attach the respondents Bank Account to an extent of Rs.3,61,43,795/- details available with applicant/petitioner are as follows:-
a. Account no. 609000168503 (WESTERN INDIA TRANSPORT FINANCE CO P LTD), IFSC Code RATN0000088, with RBL Bank Ltd, Current Account, b. Account no. 409000370760 (WESTERN INDIA TRANSPORT FINANCE CO P LTD), IFSC Code RATN0000088, with RBL Bank Ltd, Current Account, c. Account no. 004220110000132' (WESTERN INDIA TRANSPORT FINANCE CO P LTD), IFSC Code BKlD0000042, with Bank of India, Current Account d. Account no. 709006245469 (WESTERN INDIA TRANSPORT FINANCE CO P LTD), IFSC Code RATN0000088, with RBL Bank Ltd, Recurring Deposit ofRs. 63,00,482/-
e. Account no. 15738640000076 (WESTERN INDIA TRANSPORT FINANCE CO P LTD), IFSC Code HDFC0000830, with HDFC Bank Ltd, Current Account.
f. Account no. 50200003812431 (WESTERN INDIA TRANSPORT FINANCE CO P LTD), IFSC Code HDFC0000830, with HDFC Bank Ltd, Current Account, g. Account no. 1721200110002913 (WESTERN INDIA TRANSPORT FINANCE CO P LTD), IFSC Code AUBL0002348, with AU Bank Ltd, Current Account.Signature Not Verified digitally signed by:DUSHYANT RAWAL
h. Account No. 00051930007228 (NIKHIL DILIP SWADI), IFSC Code HDFC0000005, with HDFC Bank, Saving Account, i. Bank account pertaining to PAN No. AAHCA7456L of WESTERN INDIA TRANSPORT FINANCE CO P LTD
d) Pass an order directing respondents to deposit an amount of Rs.3,61,43,795 /- (Three Crore Sixty One Lakhs Forty Three Thousand and Seven Hundred and Ninety Five Rupees only.) before this Hon'ble Court till the disposal of the Arbitration proceedings;
e) Pass an order directing respondents to submit an affidavit with respect to their assets (movable & immovable) and with a direction for not disposing any such asset till the disposal of Arbitration proceedings;"
2. It is the petitioner‟s case that the respondent had approached the petitioner company for availing the loan facility sometime around 15.09.2017. Thereafter, on 16.09.2017, respondent nos.1 and 2 had entered into an Agreement with the petitioner company, whereby the petitioner company had agreed to disburse an amount of ₹10 crores to respondent no.1.
3. It is averred that from March, 2020 to September, 2020. respondent no.1 defaulted in its repayment obligations. The petitioner states that a sum of ₹3,52,82,913 is outstanding and payable by respondent no.1 as on 09.11.2020. It is stated that respondent no.2 had guaranteed the payment obligations of respondent no.1. Accordingly, the petitioner company had also issued a notice to respondent no.2 invoking his Personal Bank Guarantee. However, despite the same, the respondents have not settled the Signature Not Verified digitally signed by:DUSHYANT RAWAL dues of the petitioner.
4. It is apparent from the above that the petitioner, essentially, seeks an order of attachment before decree. Although, the learned counsel for the petitioner contends that the respondents are diverting the funds of respondent nos. 1 and 2, there is no material to suggest that the respondents have been siphoning off any funds of respondent no.1 company; there is no material that indicates that either respondent no.1 or respondent no.2 have been diverting their funds/assets to third parties with a view to frustrate any award that may be made against them.
5. The petitioner‟s case, essentially, rests on its averments to the effect that the said respondents have defaulted in their payment obligations. It is also contended that the respondents have been defaulting in meeting their commitments to other lenders as well and are endeavouring to enter into a one time settlement with them.
6. Concededly, respondent nos. 3 to 6 are not parties to any Arbitration Agreement or the Loan Agreement. They have also not furnished any personal guarantees to the petitioner. They are stated to be directors of respondent no.1 company and there is no material to indicate that they are personally liable for any of the dues owed by respondent no.1 to the petitioner.
7. It is noted that the petitioner has recalled the loan by a notice dated 12.10.2020, however, although almost six months have since elapsed, the petitioner has neither issued a notice invoking arbitration nor taken any steps for referring the disputes to arbitration.
8. Since there is no material on record to prima facie establish that respondent nos. 1 and 2 have been siphoning off funds or diverting the funds Signature Not Verified digitally signed by:DUSHYANT RAWAL from the respondent company or otherwise wilfully acting in a manner so as to frustrate an award that may be rendered against them, this Court does not consider it apposite to allow the present petition.
9. The petition is, accordingly, dismissed. The pending application is also dismissed.
10. It is clarified that all rights and contentions of the parties are reserved and the petitioner would not be precluded from approaching the Arbitral Tribunal for any interim measures or protection as and when the Arbitral Tribunal is constituted.
VIBHU BAKHRU, J APRIL 22, 2021 pkv Signature Not Verified digitally signed by:DUSHYANT RAWAL