Bombay High Court
Siemens Financial Services Pvt.Ltd vs Bharat Scans Pvt.Ltd. And 2 Ors on 19 October, 2018
Author: S.J. Kathawalla
Bench: S.J. Kathawalla
Nitin 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORIDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMM. ARBITRATION PETITION No.1124 OF 2018
Siemens Financial Services Private Limited ... Petitioner
Versus
Bharat Scans Pvt. Ltd. & Ors. ... Respondents
Mr. Karl Tamboly a/w Mr. Shavez Mukri and Ms. Shilpa Upadhyay i/b.
Indialaw for the Petitioner.
None for Respondents.
CORAM: S.J. KATHAWALLA, J.
DATED: 19 th OCTOBER 2018 P.C.
1. The above Petition is filed by the Petitioner under Section 9 of the Arbitration and Conciliation Act, 1996 seeking reliefs as prayed against the Respondents. The Petition is served on the Respondent and an Affidavit proving service is on record. The Petition is today taken up for final hearing. However, none appear for the Respondents.
2. By a Loan Agreement ("said Agreement") dated 25.03.2014, the Petitioner provided a loan of Rs.5,00,00,000/- (Rupees Five Crore Only) to the Respondent No. 1 in two instalments i.e. Rs. 3,29,45,736/- (Rupees Three Crores Twenty Nine Lakhs Forty Five Thousand Seven Hundred and Thirty Six Only) for purchase of GE Optima CT 660 128 Slice CT Scanner with all its accessories and Rs. 1,70,54,264/- (Rupees One Crore Seventy Lakhs Fifty Four Thousand Two Hundred and Sixty Four Only) for the purchase of GE Brivo-
::: Uploaded on - 25/10/2018 ::: Downloaded on - 25/10/2018 23:25:42 ::: Nitin 2CT 385-16 Slice Ct Scanner more particularly described in Schedule: 'K' of the Petition and on the terms described in the said Agreement dated 25.03.2014. Under the said Agreement, the said Asset was hypothecated with the Petitioner by the Respondents, as security for repayment of the Loan amount. Respondent Nos. 2 and 3 have executed Personal Guarantee Agreement dated 25.03.2014 along with the said Agreement.
3. The Loan amount of Rs.5,00,00,000/- (Rupees Five Crore Only) was repayable by the Respondents to the Petitioner with interest @ 13.75% per annum and the tenor of the said Agreement was for 63 months.
4. Clause 13 of the Loan Agreement provides for the events of default; Clause 17 for the rights and remedies of the Petitioner including procedure for Repossession of Asset. Clause 28 provides for Arbitration. There has been a default on the part of the Respondents and the Respondents failed to pay to the Petitioner a sum of Rs.4,40,55,473/- (Rupees Four Crores Forty Lakhs Fifty Five Thousand Four Hundred Seventy Three Only) as on 15.09.2018. The events of default having taken place in terms of the said Loan Agreement, the Petitioner became entitled to recall and have recalled the entire loan. There was no reply to the Loan Recall Notice dated 16.09.2018. The Petitioner therefore invoked the arbitration clause in the said Agreement dated 25.03.2014.
5. In the present Petition, the Petitioner has sought appointment of the Court Receiver, High Court Bombay as the Receiver of the Hypothecated Asset, more particularly described in Schedule: 'K' to the Petition. The Respondents have not filed their Affidavit in Reply and are also not present before the Court. In absence of any defence or contest by the Respondents, the averments contained in the Petition have remained uncontroverted. I see no reason why the ::: Uploaded on - 25/10/2018 ::: Downloaded on - 25/10/2018 23:25:42 ::: Nitin 3 statements/submissions made by the Petitioner in the Petition should not be accepted. Section 9 empowers the Court to pass an interim measure of protection. As the Respondents have defaulted in the repayment of the outstanding dues, it is just and necessary to safeguard the interest of the Petitioner by appointing the Court Receiver as Receiver of the Hypothecated Asset. The appointment of the Receiver is necessary in order to ensure that the said Asset is not wasted or alienated, thereby defeating the rights of the Petitioner. Further interim injunction in terms of prayer clause (c) also needs to be granted to protect the rights of the Petitioner. The claim of the Petitioner is over Rs.4,40,55,473/- and unless adequately protected, the Petitioner may suffer irreparable harm and injury. Balance of convenience also warrants the grant of relief.
Hence, the following order is passed:
a) There shall also be an interim injunction restraining the Respondents from disposing of, alienating, encumbering, parting with possession or creating any third party rights in respect of the said Asset described in Schedule: 'K' of the Petition.
b) Pending the hearing and final disposal of the arbitration proceedings, the Court Receiver is appointed as Receiver in respect of the Hypothecated Asset, more particularly described in Schedule: 'K' of the Petition with a direction to take physical possession of the said Asset with police assistance, if required, and without any prior notice to the Respondents;
c) The Court Receiver shall within a period of one week after taking possession, give an option to the Respondents, in writing to act as an agent of the Receiver in respect of the said assets. The Respondents shall ::: Uploaded on - 25/10/2018 ::: Downloaded on - 25/10/2018 23:25:42 ::: Nitin 4 be given two weeks time by the Court Receiver from the date of receipt of the Court Receiver's communication/letter to exercise such an option. In the event the Respondents being desirous of acting as agents of the Court Receiver, they shall be appointed as agent/s of the Receiver, subject to deposit of security and payment of royalty. The Receiver shall determine the quantum of security and royalty having regard to the terms and conditions contained in the Loan Agreement (being Exhibit 'B' to the Petition);
d) In the event that the Respondents do not communicate their willingness to the Receiver to act as agent within a period of two weeks from the date of filing of the said publication by the Petitioner, it would be open to the Petitioner to apply to the Court for further orders including sale of the said Asset by private treaty;
d) There shall also be an interim injunction restraining the Respondents from disposing of, alienating, encumbering, parting with possession or creating any third party rights in respect of the said Asset described in Schedule: 'K' of the Petition.
6. A copy of this order shall be forthwith served on the Respondents by Speed Post A.D.
7. Accordingly stand over to 29th, October, 2018.
(S.J. KATHAWALLA, J.) ::: Uploaded on - 25/10/2018 ::: Downloaded on - 25/10/2018 23:25:42 :::