Delhi High Court
Shweta Sharma vs M/S. Volkswagen Finance Pvt. Ltd. on 23 February, 2016
Author: V.K.Shali
* HIGH COURT OF DELHI AT NEW DELHI
+ F.A.O. No.92/2016 & C.M. No.6576/2016
Decided on : 23rd February, 2016
SHWETA SHARMA ...... Appellant
Through: Mr. Viplav Sharma, Advocate.
Versus
M/S. VOLKSWAGEN FINANCE PVT. LTD. ...... Respondent
Through: Mr. Sanjeev Sagar & Ms. Jasvin Dhama,
Advocates.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (ORAL)
1. This is an appeal filed by the appellant under Section 37 of the
Arbitration & Conciliation Act, 1996 against the orders dated 27.11.2015
and 19.12.2015 passed by the learned Additional District Judge.
2. I have heard the learned counsel for the appellant as well as learned
counsel for the respondent. The learned counsel for the appellant has
contended that the aforesaid order dated 27.11.2015 by virtue of which
the order of repossession of the appellant's vehicle has been passed by the
learned ADJ-01 (South), New Delhi on the ground that there has been
default on the part of the appellant borrower in repayment of the loan
amount is not factually correct. The learned counsel has stated that the
appellant had given instructions to her banker for ECS debit from her
husband's account but for the purpose of the said debit, a requisition is to
be received from the respondent bank and in the instant case, the amount
of Rs.5,44,444/- which is stated to be outstanding by the appellant is
factually incorrect and the appellant at best is prepared to pay two
installments for which she is stated to be in default and the order be
reviewed.
3. It has also been contended by the learned counsel that the
application under Section 9 of the Arbitration and Conciliation Act stands
disposed of and therefore, he has been left with no remedy under law
except to assail the impugned orders under Section 37 of the Act. This
factum has been contested by the learned counsel for the respondent. He
has submitted that a perusal of the order dated 27.11.2015 would clearly
show that the appellant was given three day's time to make payment of
the entire outstanding loan amount and if so done, the vehicle was to be
returned back if it had been repossessed by the respondent. It has been
stated that despite the order of repossession having been passed in their
favour, the appellant has been evading the execution of the order as a
consequence of which the vehicle could not be repossessed and,
therefore, it is prayed before this court that the order passed under Section
9 of the Arbitration and Conciliation Act be set aside.
4. I have considered the rival contentions and have also gone through
the impugned orders dated 27.11.2015 as well as 19.12.2015. Briefly
stated the facts of the case are that the appellant is purported to have take
a loan of Rs.40 lacs from the respondent vide loan agreement
No.20141052508 for purchase of a vehicle make AUDI A6. The
aforesaid amount of loan was to be repaid by the appellant in 84 equal
monthly installments of Rs.46,380/- each but it is alleged by the
respondent that the appellant did not maintain the financial discipline and
did not pay the installments timely as a consequence of which the entire
loan amount was recalled and a notice for recall was given to her on
4.11.2015. After recall, it was stated that the appellant was under an
obligation to pay the total amount of Rs.41,91,873.45 within three days of
the receipt, failing which appropriate recovery proceedings against the
appellant were threatened to be initiated. Since the appellant did not
respond to the notice, the respondent filed an application under Section 9
of the Arbitration & Conciliation Act for an ad interim order before the
court of ADJ.
5. The learned court passed a reasoned and a balanced order and
appointed a Receiver subject to following conditions :-
An inventory in respect of the attachments in the
vehicle shall be made by the Receiver and copy of
the same be given to the person from whose
possession the vehicle is possessed and the
petitioner who shall file the same in court along with
the report of the Receiver.
The condition of vehicle shall be noted and the
Receiver shall take photograph of the repossessed
vehicle from all sides and shall ensure that vehicle is
kept in the same condition as it was repossessed.
An appropriate receipt shall be given to the person
from whose custody the vehicle is taken. The vehicle
in question shall not be sold or disposed of or parted
with without due permission of the court.
In case the respondent clears all the installments
due, the vehicle will not be repossessed and if
repossessed, the vehicle is to be released within
three days of receipt of due installments.
An affidavit indicating repossession of vehicle be
filed within 3 days of its repossession along with its
photographs and inventory.
The Receiver will inform the respondent the option
of resolving the dispute amicably by settlement in
Mediation Cell, Saket Courts, New Delhi and will
also give a copy of this order to the respondent at
the time of repossessing the vehicle.
The petitioner shall refer the dispute to arbitration
in terms of clause X of Loan Agreement for
appointment of an Arbitrator within four weeks from
today and inform the court about the same on the
next date."
6. The matter was fixed for 25.2.2016 and notices were directed to be
issued to the appellant, who was the respondent in the said application for
appointment of a Receiver. On 19.12.2015, the respondent herein filed
an application before the learned ADJ for bringing it to the notice of the
court that the local police was not giving necessary police assistance for
repossession of the vehicle as a consequence of which the ad interim
order dated 27.11.2015 could not be executed. The court was pleased to
direct the local police to render necessary police assistance so that the
order could be executed.
7. The appellant instead of going back to the learned court below has
chosen to file the present appeal. This attitude on the part of the appellant
is highly objectionable inasmuch as, in the first instance, the appellant
ought to have approached the learned ADJ who has passed the order as it
has given the appellant sufficient window to make the payment of the
outstanding amount and permit her to retain the vehicle. By avoiding that
process, the appellant's appeal cannot be entertained by this court. In
case, this is done, it will set a very wrong precedent and would also give a
wrong signal to the court below that the appellant is trying to remote
control the proceedings before the learned ADJ.
8. I, therefore, hold that the present appeal is not maintainable without
the appellant first approaching the learned ADJ by filing an application
seeking modification, alteration or vacation of the ad interim order. With
these directions, the appeal stands disposed of.
V.K. SHALI, J.
FEBRUARY 23, 2015
'AA'
