Monika Bhalla vs Hdfc Bank Limited
2009 Latest Caselaw 2662 Del

*       HIGH COURT OF DELHI : NEW DELHI

          FAO No.201/2009 & CM No.9240/2009

      %              Judgment reserved on: 14th July, 2009

                     Judgment delivered on: 16th July, 2009

Monika Bhalla
w/o Sh.Deepak Bhalla,
R/o 32/42, West Punjabi Bagh
New Delhi-110026
(Bus No.Dl-1PB 8497)                ....Appellant
              Through: Mr. R.K. Kapoor, Adv.

                      Versus

HDFC Bank Limited,
A Banking Bank incorporated and registered
Under the Companies Act 1956
Having its Registered Office at;
HDFC Bank House, Senapati Bapat Marg
Lower Parel (West), Mumbai-400013
And Branch/Lending Office at:
HDFC Bank Ltd. Retail Assets Division
9th Floor, Ansals Classique Tower
J-Block, Rajouri Garden,
New Delhi-110027,
Through the Constituent Attorney ....Respondent.

                      Through: Nemo.

Coram:
HON'BLE MR. JUSTICE V.B. GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                         Yes

2. To be referred to Reporter or not?                      No



FAO No.201 of 2009                                    Page 1 of 6
 3. Whether the judgment should be reported
   in the Digest?                                             No

V.B.Gupta, J.

By way of the present appeal, appellant has

challenged the order dated 27th April, 2009 passed by

Addl. District Judge, Delhi, vide which Receiver was

appointed with direction to take custody of commercial

vehicle, that is, Volvo bus, bearing registration No.DL

1PB 8497.

2. Brief facts of this case are that, respondent

financed a sum of Rs.59 lacs to the appellant for

purchase of the above mentioned vehicle on execution

of certain documents. In pursuance to the loan

agreement, appellant agreed to adhere to the

repayment schedule and the vehicle was hypothecated

with the respondent. As per agreement, loan was to be

repaid in 47 instalments of Rs. 1,49,233/- each.

3. As per appellant's own case, 33 instalments have

been paid and 14 instalments are due in the future.

4. In view of the default committed by the appellant,

respondent moved a petition before the trial court for

appointment of the Receiver and vide impugned order,

trial court appointed a Receiver directing him to take

back the bus into custody and accordingly, he took the

bus into custody. Aggrieved with that order, present

appeal has been filed.

5. It has been contended by learned counsel for the

appellant that the impugned order has been passed

without issuance of any prior show cause notice to the

appellant and without calling for any explanation in

response to the petition filed by respondent under

Section 9 of the Arbitration and Conciliation Act.

There is clearly a violation of principles of natural

justice and violation of Article 14 of the Constitution of

India. Appellant has already paid 33 instalments and

the balance instalments, he is ready and willing to pay

and as such there was no question of seizure of the

vehicle and this seizure is totally illegal.

6. It is an admitted fact that, appellant has taken

loan for purchase of commercial vehicle and amount

was to be repaid by him in instalments and has paid till

date only 33 instalments, and also committed default in

payment of various instalments. The last instalment

has been paid by the appellant on 8th May, 2009 which

is apparent from the additional affidavit filed by the

appellant. There is nothing on record to show that

after 8th May, 2009, appellant has paid any instalment.

7. The main grievance of the appellant is that

impugned order was passed at his back without giving

him any opportunity. It is pertinent to point out that as

per impugned order, the matter was adjourned to 1st

June, 2009 for the service of present appellant. In the

appeal, appellant deliberately did not mention as to

what happened on 1st June, 2009, before the trial court

nor did he file copy of the proceedings dated 1st June,

2009.

8. It was only when appellant was directed to file

additional affidavit, on 13th July, 2009 he reproduced

the proceedings of the trial court for 1st June, 2009

which read as under;

"Present:- None for the petitioner.

Shri Deepak Bhalla, husband of the respondent is present.

He states that my wife Smt. Monika Bhalla is out of Delhi and as such could not come to this Court today. He assures that his wife would pay all the defaulted installments to the Petitioner bank within period of two months.

Put up for appearance of respondent and further proceeding 20.7.2009."

9. The husband of the appellant had appeared

before the trial court on 1st June, 2009 and gave an

assurance that appellant (his wife), would pay all the

defaulted installments to the respondent bank, within a

period of two months. Accordingly, trial court

adjourned the matter to 20th July, 2009. On the one

hand, husband of the appellant gave assurance before

the trial court that his wife (appellant) would pay all

the defaulted installments to the respondent-bank

within a period of two months, while on the other

hand, appellant without waiting for that period of two

months to expire, has filed the present appeal.

10. In view of the assurance given by the appellant

before the trial court that she would pay the defaulted

installments within period of two months, the present

appeal is not maintainable and is premature. The

appeal as well as the application for stay are dismissed

with observations that if appellant comply with the

assurance given to the trial court on 1st June, 2009 by

paying all the defaulted installments, within the

prescribed period, the trial court may consider the plea

of the appellant for release of bus seized by Receiver,

in accordance with law.

11. Copy of this order be sent to the trial court.

July 16, 2009                         V.B.GUPTA, J.
Bisht