Delhi High Court
Icici Bank Ltd. vs Pawan Kumar Yadav on 23 December, 2015
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 436/2015
ICICI BANK LTD ..... Appellant
Through: Mr. Punit K. Bhalla and Ms. Chetna
Bhalla and Ms. Isha Abrol, Advs.
versus
PAWAN KUMAR YADAV ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
ORDER
% 23.12.2015
CM No.32322/2015 (Exemption)
1. Allowed subject to just exceptions.
FAO 436/2015
2. This is an appeal directed against order dated 27.11.2015, passed by
the learned Additional District Judge (ADJ). By this order, the learned ADJ
has agreed to the appellant's prayer for appointment of a receiver in respect
of the vehicle described as "HONDA CITY/1.5 V-MT bearing registration
No.HR-26CB-2003", albeit on certain conditions.
3. Broadly, the conditions, which have been indicated in the impugned
order and, with which, the appellant is aggrieved, are as follows:-
(i) The appointment of Mr. Mohit Sharma, Advocate along with Mr.
Gyanesh Kumar, a representative of the appellant / plaintiff, as a co-
receiver.
(ii) The direction that the co-receiver, i.e. Mr. Mohit Sharma, Advocate,
FAO 436/2015 page 1 of 5
would be paid a fee of Rs.20,000/-; with a further direction that the said fee
would be paid within seven days from the date of the impugned order.
(iii) The receivers will ensure that the subject vehicle is kept in safe
custody, albeit within the territory of the court, i.e. the Central District.
(iv) Upon payment of 50% of the loaned amount, the subject vehicle will
be released to the respondent or his representative on superdari.
(v) The validity period of the order is confined to 30 days.
4. Mr. Bhalla says that these conditions are onerous and, in a sense,
unworkable.
5. It is Mr. Bhalla's contention that since the suit amount is a sum of
Rs.5,56,312.59 inclusive of interest, the direction to pay fees of Rs.20,000/-
to a co-receiver appointed by a court, especially, when the very recovery of
the dues is uncertain, is a heavy burden cast on the appellant/plaintiff. It is
his contention that the appellant/plaintiff is ultimately dealing with public
funds. It is submitted that the receivership order passed by the trial court
can be easily executed by an officer of the appellant/plaintiff.
6. As regards the other condition, which requires the receiver to keep the
subject vehicle within the territorial jurisdiction of the court, i.e. the Central
District, Mr. Bhalla says that the appellant/plaintiff does not have a godown
within the territorial jurisdiction of the court. It is the submission of the
learned counsel that hiring a place within Central District, will involve
expenses, which, again, makes the proposition of recovery by instituting the
present action unworkable and impracticable.
7. Mr. Bhalla, as indicated above, is also aggrieved by the condition
contained in the order which directs release of the subject vehicle to the
FAO 436/2015 page 2 of 5
respondent /defendant on deposit of only 50% of the loaned amount.
He says that the principal amount loaned to the respondent / defendant was a
sum of Rs.7 lakhs, and because, defaults were committed, the suit amount
came to a figure of Rs.5,56,312.59. 50% of the loaned amount, according to
the learned counsel, would leave a huge monetary gap, which may,
ultimately, be difficult to bridge, as there is no other security except the
subject vehicle.
8. Insofar as the other condition placed in the impugned order, which is
indicative of the fact that the order will remain in operation only for a period
of 30 days, Mr. Bhalla says, that the said condition is also unworkable for
the reason that more often than not it is very difficult to trace the subject
vehicle. In case the appellant / plaintiff is unable to trace the subject vehicle
within the given period, it would have to, once again, move the court by way
of a fresh application.
9. For all these reasons, Mr. Bhalla says that the order needs to be
interfered with by this court.
10. Having regard to the submissions of Mr. Bhalla, I am inclined to
agree with him. A receiver appointed in an action instituted by a bank,
essentially, seeks to secure what are in effect public funds. With Non
Performing Assets (NPAs) of banks reaching a staggering figure, trial courts
have to keep this aspect in mind even while it seeks to balance the interest of
the borrowers, especially, small individual borrowers, who are in genuine
financial crises.
10.1 In this context, at the ex-parte stage, apart from the other impugned
directions, for the trial court to direct release of the subject vehicle if, 50%
FAO 436/2015 page 3 of 5
of the loan amount is paid, was not appropriate. The trial court needs to
assess the financial position and other attendant difficulties of the borrower.
The trial court, in this case, as is perceptible from the action instituted,
appointed a receiver to secure what are, essentially, public funds at the end
of the day.
10.2 Furthermore, for the trial court, to put unnecessary fetters on the
working of a receiver does not inure to the benefit of the person asking for
the said relief, much less a bank. Once the court was convinced that the
appellant had a prima facie case qua recovery, and there was a default in
payment of dues then, ordinarily, the appointment of a receiver, in the case
of a bank, should have followed as a matter of course.
11. In these circumstances, the impugned order is modified to the
following extent:-
(i) Mr. Gyanesh Kumar, who I am told, is a representative of the
appellant, is appointed as the sole receiver.
(ii) The receiver shall take possession of the subject vehicle. The receiver
will keep the vehicle at the place provided by the appellant/plaintff.
(iii) In case the respondent pays the entire amount, which is, due and
payable, the subject vehicle will be released to the respondent on superdari.
In such an eventuality, the receiver will issue a receipt in that behalf to the
respondent.
(iv) Further more, if necessary, the receiver will be entitled to take
assistance of the concerned police station.
12. It is made clear that other directions issued by the trial court with
regard to the manner of taking possession shall be borne in mind by the
FAO 436/2015 page 4 of 5
receiver. Inter alia, the receiver, will bear in mind that due courtesies are
extended to the respondent, while taking possession of the subject vehicle.
13. The receiver will also bear in mind the time and place at which the
possession of the subject vehicle is taken, so that, no inconvenience is
caused to the respondent.
14. The receiver will file a report with the trial court on or before the next
date of hearing.
15. In case, on that date, the possession of the subject vehicle is not taken,
on account of failure to discover the location of the vehicle, the trial court
will be at liberty to extend the operation of this order.
16. The appeal is disposed of, in the aforesaid terms.
17. Dasti.
RAJIV SHAKDHER, J
DECEMBER 23, 2015
s.pal
FAO 436/2015 page 5 of 5
