India Infoline Finance Limited vs Gold Field Shiksha Sanstha ...
2016 Latest Caselaw 2596 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Order delivered on: 4th April, 2016

+                     O.M.P. (I) (COMM.) No.104/2016
       INDIA INFOLINE FINANCE LIMITED                ..... Petitioner
                     Through   Mr.Rajat Katyal, Adv.

                             versus

       GOLD FIELD SHIKSHA SANSTHA (REGD.)                     ..... Respondent
                     Through None

       CORAM:
       HON'BLE MR.JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (ORAL)

I.A. No.4148/2016 (exemption) Exemption allowed, subject to just exceptions.

The application is disposed of.

O.M.P. (I) (COMM.) No.104/2016

1. Issue notice to the respondent through all modes including registered post and approved courier, on filing of process fee and Regd. A.D. Covers within a week, returnable on 6th May, 2016. Dasti in addition. The petitioner will file an affidavit of service along with tracking report about the service of the respondent on the next date.

2. The petitioner has filed the present petition under Section 9 of the Arbitration and Conciliation Act, 1996 seeking appointment of Receiver to

take possession of the equipments as detailed in para 8 of the petition, from the respondent.

3. It is stated in the petition that at the request of the respondent, the petitioner granted 8 Loan Facilities which were to be repaid by the respondent to the petitioner in respective monthly instalments. However, the respondent defaulted in repayment of the same and finally approached the petitioner for rescheduling the said loan facilities.

4. It is further stated that the petitioner consequently issued fresh Loan Agreement No. HC2188, dated 30th June, 2015 (hereinafter referred as "the Agreement"). The amount of Rs.9,12,17,789/- was financed to be repaid alongwith interest at the rate of 13.50% per annum.

5. It is stated that as per the agreement, the respondent was granted Loan Facility and the respondent agreed to repay the loan amount back to the petitioner in 72 (Seventy Two) monthly installments, being Installment no. 1 to 12 of Rs.1100000/- each, Installment no. 13 to 24 of Rs.1500000/- each and Installment no. 25 to 72 of Rs.2280500/- each.

6. As per the Agreement, the respondent issued post dated cheque(s)/ ECS for the payment of installments in favour of the petitioner and also made arrangement in that regard with their bankers and further agreed to maintain adequate amounts in the account for the realization of the abovementioned cheque(s) and promised to maintain sufficient funds in the account to honour the cheques and to make the payment of EMIs, in lieu of loan, on time.

7. However, the respondent failed to maintain the financial discipline and thereby committed default. Even, the post-dated cheques issued by them

were received back dishonoured. Under those circumstances, the petitioner issued notice dated 5th January, 2016 whereby the petitioner had called upon the respondent to pay foreclosure amount. As on 29th February, 2016 the total amount due towards the loan account is Rs.10,17,59,476.15 and as of 29th February, 2016 the respondent has not paid even a single EMI i.e. there is a default of 7 EMIs out of 7 installments which have become due till 29th February, 2016. The respondent further failed to make the equipments, which are security, available for inspection to the officials of the petitioner in consonance with the Agreement entered between the parties, despite being directed to do so.

8. The respondent at the time of agreement undertook not to encumber upon or transfer the hypothecated equipments in any manner directly or indirectly without the express consent of the petitioner in writing.

9. However, the petitioner came to know that the Medical Council of India has derecognised the medical institute as well as the Hospital of the respondent has also been closed down. The respondent has taken huge amount of loans from different institutions and there is unrest at the premises and apprehensions are that the equipment may be misappropriated or damaged.

10. Under those circumstances, the petitioner has decided to invoke the arbitration at New Delhi by appointing sole Arbitrator as per the terms of the agreement, but the petitioner apprehends the misappropriation of the said equipments which would cause irreparable loss and damage to the petitioner.

11. Counsel appearing on behalf of the petitioner urges that a Receiver be appointed with the direction to sieze the equipments and place the same in the premises of the respondent itself.

12. I have heard the learned counsel for the petitioner who has referred to various paras of the petition as well as documents placed on record. I am of the view that the petitioner has made out a case for ex-parte appointment of the receiver. As prayed, Mr.Sanjay Tripathi, Collections Manager of the petitioner is appointed as receiver to take the possession of equipments, the details of which are given in para 8 of the petition.

13. The receiver shall be at liberty to take the assistance of the Local police, if required, for taking over possession of the equipments. The concerned SHO shall provide assistance to the receiver as and when requested.

14. The receiver shall also ensure that the possession of the equipments does not result in any breach of peace. In the event of any breach of peace, the receiver shall not proceed without assistance of police.

15. At the time of taking the custody of the equipments, the receiver shall deliver a copy of this order to the person(s) from whom the possession is taken.

16. At the time of taking the custody of the equipments, the receiver shall take the photographs of the same from different angles along with the photographs of the place of taking over the possession.

17. After taking the possession and seizing, the receiver shall keep the equipments in safe custody in the premises of the respondent itself.

18. If the respondent makes payment of the outstanding installments as on the date of possession, the receiver shall release the equipments in question to the respondent on superdari, subject to an undertaking by the respondent to the receiver for regular repayment of future monthly installments till the expiry of the tenure and a declaration not to part with the equipments or create third party interest therein until the entire amount is paid.

19. If the respondent is not in a position to clear the entire outstanding installments, the receiver shall give it another opportunity to pay the outstanding installments within 30 days of taking over the possession of the equipments and in case the respondent makes the payment of the outstanding installments within the said period, the receiver shall release the equipments to the respondent subject to an undertaking as aforementioned.

20. The receiver shall submit his report before this Court within 10 days of taking the custody of the equipments along with the photographs and inventory mentioned above.

21. Dasti under the signature of the Court Master.

(MANMOHAN SINGH) JUDGE APRIL 04, 2016