Delhi High Court
Kotak Mahindra Prime Ltd. vs Tattva Realtors Private Limited & ... on 6 July, 2015
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P.(I) 306/2015
% Date of Decision : 06th July, 2015
KOTAK MAHINDRA PRIME LTD. ..... Petitioner
Through: Mr. Vikas Chopra, Advocate
versus
TATTVA REALTORS PRIVATE LIMITED & ORS. ... Respondents
Through:
CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT(ORAL)
1. The petitioner is seeking ex parte appointment of receiver under
Section 9 of the Arbitration and Conciliation Act, 1996 to take possession of
vehicle make Bentley bearing registration No.TN20BH0357 having chasis
No.5CBBY53W49CO62319 and engine No.BWR022921 from the
respondent.
2. Vide loan agreement dated 20th February, 2014, the petitioner
advanced a loan of Rs.89,70,000/- to the respondents which was repayable
in 36 monthly instalments of Rs.3,01,327/- commencing from 10th March,
2014.
3. The respondents have paid 13 EMIs and there is a default in respect of
three EMIs. Vide notice dated 07th May, 2015, the petitioner recalled the
loan and called upon to the respondents to pay the total outstanding amount.
The respondents have not complied with the aforesaid notice. The amount
payable by the respondents as on 30th June, 2015 is Rs.65,08,711/-.
4. This Court is satisfied that the petitioner has made out a case for ex
parte appointment of the receiver. The petition is, accordingly, allowed and
Mr. Nitin Arora, the representative of the petitioner is appointed as receiver
to take the possession of Bentley car bearing registration No.TN20BH0357
having chasis No.5CBBY53W49CO62319 and engine No.BWR022921.
5. The receiver shall take over the possession of the vehicle from the
respondents at the address(es) given in the loan application. If the vehicle is
not available at the said address(es), the receiver shall be at liberty to
recover the vehicle wherever found. However, the receiver shall not stop a
running vehicle on the road to forcibly take out the driver to take the
possession of the vehicle. The receiver shall also not make any attempt to
block the passage of a car to bring it to a halt to take its possession.
6. The receiver shall avoid taking the possession of the vehicle if the
vehicle is occupied by a woman who is not accompanied by a male member
or an elderly, infirm or physically/mentally challenged person. In such
cases, the receiver shall take the possession of the vehicle from the
borrower's residence.
7. The receiver shall be at liberty to take the assistance of the local
police, if required, for taking over possession of the vehicle. The concerned
SHO shall provide assistance to the receiver as and when requested.
8. The receiver shall also ensure that the repossession of the vehicle does
not result any breach of the peace. In the event of any breach of peace by
the person occupying the vehicle, the receiver shall not proceed without
assistance of police.
9. At the time of taking the custody of the vehicle, the receiver shall
deliver copy of this order to the person from whom the possession is taken.
10. At the time of taking the custody of the vehicle, the receiver shall take
the photographs of the vehicle from different angles along with the person(s)
occupying the vehicle as well as the place of taking over the possession.
11. The receiver shall prepare an inventory of the articles/accessories
found in the vehicle and shall furnish the copy of the inventory to the person
from whom the possession is taken.
12. After taking the vehicle in possession, the receiver shall keep the
vehicle in safe custody.
13. If the respondents make payment of the outstanding instalments as on
date of possession, the receiver shall release the vehicle in question to the
respondent on superdari subject to an undertaking by the respondents to the
receiver for regular repayment of future monthly instalments till the expiry
of the tenure and a declaration not to part with the vehicle or create third
party interest in the vehicle until the entire amount is paid.
14. If the respondents are not in a position to clear the entire outstanding
instalments, the receiver shall give them another opportunity to pay the
outstanding instalments within 30 days of taking over the possession of the
vehicle and in case the respondents make the payment the outstanding
instalments within the said period, the receiver shall release the vehicle to
the respondents subject to an undertaking as aforementioned.
15. If the respondents do not make the payment of the outstanding
amount to the petitioner within 60 days, the receiver, with the prior
permission of the arbitrator, would be authorised to sell the vehicle in
question in a public auction with prior written notice (to be sent by Speed
Post AD) of the date of auction to the respondent at the address(es)
mentioned in the loan agreement and the address from where the vehicle is
taken into possession so that the respondents may also be able to participate
in the auction to enable the appellant to fetch maximum amount from the
sale of the vehicle. The receiver shall carry out video recording of the
auction proceedings and shall submit the same before the arbitrator along
with his final report.
16. The receiver shall submit his report before this Court within 10 days
of taking the custody of the vehicle along with the photographs and
inventory mentioned above.
17. The petitioner shall appoint the arbitrator in terms of the loan
agreement within 30 days. The receiver shall submit copy of his report
before the arbitrator.
18. The learned arbitrator will decide the disputes between the parties
uninfluenced by the present order.
19. The parties are at liberty to apply to the learned arbitrator for
modification of this order.
20. This order shall remain in force till either the respondents makes 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.
21. The petition is disposed of in the above terms. Order be given dasti.
J.R. MIDHA, J.
JULY 06, 2015
rsk
