L & T Finance Limited vs Ober Construction Enterprises ...
2015 Latest Caselaw 309 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                      Date of decision: January 13, 2015
+                         OMP 45/2015
L & T FINANCE LIMITED                                      ..... Petitioner
               Through:                  Mr.Joginder Sukhija, Advocate
               versus

OBER CONSTRUCTION ENTERPRISES PVT. LTD. AND ANR.
                                        ..... Respondents
            Through:

CORAM:
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V.KAMESWAR RAO, J. (Oral)

IA No. 363/2015

Exemption allowed, subject to all just exceptions.

Application stands disposed of.

OMP 45/2015

1. This petition has been filed by the petitioner under Section 9 of the

Arbitration and Conciliation Act, 1996 ('Act' in short) seeking

appointment of a representative of the petitioner company as a Receiver

to take possession of a vehicle/asset/construction equipment of the

respondents, financed by the petitioner under a loan-cum-hypothecation

agreement dated 24.06.2011. The averments in the petition are duly

supported by the affidavit and documents wherefrom, it is seen that the

petitioner company had sanctioned a loan of Rs. 38,18,163/- to the

respondents for purchase of vehicle/asset/construction equipment namely

(1) AL TMURUS 2516 (2) GREAVES CONCERETE MIXER; and (3)

PLASTERING MACHINE bearing (1) Engine No. XBH684702,

Chassis No. MB1DTJJCXBRXE0990; (2) Engine No. 04.1131/1120511,

Serial No. 103282; (3) Model No. UNI30ES. The loan was to be paid

back in 35 equated monthly instalments of Rs. 1,29,400/-. It is the case

of the petitioner that the respondents have failed to comply with the

terms and conditions of the loan facility. It is further stated, in terms of

clause 14 of the agreement, the petitioner has the right to repossess the

equipments. It is further averred that the respondents have defaulted in

payment of the loan amount and the total amount due from the

respondents jointly and severally was Rs.22,98,971/- as on 31.12.2014.

It is further averred that as per clause 18 of the loan-cum-hypothecation

agreement, it was specifically agreed between the parties that any dispute

arising out of or in connection with the said loan facility shall be referred

to and resolved by the arbitration and the petitioner constrained to

terminate and recall the loan facility and the dispute has been referred to

the arbitration of the Sole Arbitrator Mr. Bharat B. Jain, Advocate, High

Court.

2. Having heard the learned counsel for the petitioner, it is noticed

that in view of the respondents' default in payment of the loan amount,

the petitioner has issued notice to the respondents terminating the

agreement. In terms of clause 18 of the agreement, the petitioner has

appointed the Arbitrator. The equipments stand hypothecated with the

petitioner and under clause 14, the petitioner has rights to repossess the

said equipments. In these circumstances, this Court hereby appoints Mr.

Ravinder Singh, authorized representative of the petitioner, as a

Receiver to repossess the aforementioned vehicle/asset/construction

equipment of the make (1) AL TMURUS 2516 (2) GREAVES

CONCERETE MIXER; and (3) PLASTERING MACHINE bearing (1)

Engine No. XBH684702, Chassis No. MB1DTJJCXBRXE0990, (2)

Engine No. 04.1131/1120511, Serial No. 103282, (3) Model No.

UNI30ES.

3. In the event, the respondents make the payment of the entire

outstanding loan amount, the Receiver shall release the said equipments

to the respondents on superdari. The respondents are restrained from

parting with the possession of, or selling or creating any third party

interests in such equipments released to them on superdari.

4. The SHO/In-charge of the police station concerned is directed to

render necessary aid and assistance to the Receiver. After taking over

possession, the Receiver shall preserve and maintain the equipments till

further orders of this Court or any other Court of competent jurisdiction

or of the Arbitrator.

5. This order shall remain in force till the respondents make the

payment of the loan amount or till it is modified by the learned

Arbitrator during arbitration proceedings or till the termination of the

arbitration proceedings.

6. The Arbitrator is free to decide the disputes referred for arbitration

uninfluenced by this order. The respondents are also at liberty to apply to

the Court for modification of this order.

7. The petition is disposed of in the above terms.

8. Order be given dasti.

(V.KAMESWAR RAO) JUDGE

JANUARY 13, 2015 akb