Delhi High Court
Ge Capital Services India vs Vasan Health Care Pvt. Ltd. on 8 March, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 2th March, 2016
Judgment Pronounced on: 8th March, 2016
+ O.M.P.(I) (COMM.) No.1/2015 & I.A. No.2811/2016
GE CAPITAL SERVICES INDIA ..... Petitioner
Through Ms.Deepika V. Marwaha, Adv. with
Ms.Worthing Kasar, Adv. along with
Mr.Gaurav Tyagi, AR present in
person.
versus
VASAN HEALTH CARE PVT. LTD. ..... Respondent
Through Mr.Rahul Srivastava, Adv. with
Mr.Manu Dev Sharma, Adv.
+ O.M.P.(I) (COMM.) No.2/2015 & I.A. No.2812/2016
GE CAPITAL SERVICES INDIA ..... Petitioner
Through Ms.Deepika V. Marwaha, Adv. with
Ms.Worthing Kasar, Adv. along with
Mr.Gaurav Tyagi, AR present in
person.
versus
VASAN HEALTH CARE PVT. LTD. ..... Respondent
Through Mr.Rahul Srivastava, Adv. with
Mr.Manu Dev Sharma, Adv.
+ O.M.P.(I) (COMM.) No.3/2015 & I.A. No.2813/2016
GE CAPITAL SERVICES INDIA ..... Petitioner
Through Ms.Deepika V. Marwaha, Adv. with
Ms.Worthing Kasar, Adv. along with
OMP (I)(COMM) Nos.1-8/2015 Page 1 of 20
Mr.Gaurav Tyagi, AR present in
person.
versus
VASAN HEALTH CARE PVT. LTD. ..... Respondent
Through Mr.Rahul Srivastava, Adv. with
Mr.Manu Dev Sharma, Adv.
+ O.M.P.(I) (COMM.) No.4/2015 & I.A. No.2814/2016
GE CAPITAL SERVICES INDIA ..... Petitioner
Through Ms.Deepika V. Marwaha, Adv. with
Ms.Worthing Kasar, Adv. along with
Mr.Gaurav Tyagi, AR present in
person.
versus
VASAN HEALTH CARE PVT. LTD. ..... Respondent
Through Mr.Rahul Srivastava, Adv. with
Mr.Manu Dev Sharma, Adv.
+ O.M.P.(I) (COMM.) No.5/2015 & I.A. No.2815/2016
GE CAPITAL SERVICES INDIA ..... Petitioner
Through Ms.Deepika V. Marwaha, Adv. with
Ms.Worthing Kasar, Adv. along with
Mr.Gaurav Tyagi, AR present in
person.
versus
VASAN HEALTH CARE PVT. LTD. ..... Respondent
Through Mr.Rahul Srivastava, Adv. with
Mr.Manu Dev Sharma, Adv.
OMP (I)(COMM) Nos.1-8/2015 Page 2 of 20
+ O.M.P.(I) (COMM.) No.6/2015 & I.A. No.2816/2016
GE CAPITAL SERVICES INDIA ..... Petitioner
Through Ms.Deepika V. Marwaha, Adv. with
Ms.Worthing Kasar, Adv. along with
Mr.Gaurav Tyagi, AR present in
person.
versus
VASAN HEALTH CARE PVT. LTD. ..... Respondent
Through Mr.Rahul Srivastava, Adv. with
Mr.Manu Dev Sharma, Adv.
+ O.M.P.(I) (COMM.) No.7/2015 & I.A. No.2817/2016
GE CAPITAL SERVICES INDIA ..... Petitioner
Through Ms.Deepika V. Marwaha, Adv. with
Ms.Worthing Kasar, Adv. along with
Mr.Gaurav Tyagi, AR present in
person.
versus
VASAN HEALTH CARE PVT. LTD. ..... Respondent
Through Mr.Rahul Srivastava, Adv. with
Mr.Manu Dev Sharma, Adv.
+ O.M.P.(I) (COMM.) No.8/2015 & I.A. No.2818/2016
GE CAPITAL SERVICES INDIA ..... Petitioner
Through Ms.Deepika V. Marwaha, Adv. with
Ms.Worthing Kasar, Adv. along with
Mr.Gaurav Tyagi, AR present in
person.
versus
OMP (I)(COMM) Nos.1-8/2015 Page 3 of 20
VASAN HEALTH CARE PVT. LTD. ..... Respondent
Through Mr.Rahul Srivastava, Adv. with
Mr.Manu Dev Sharma, Adv.
CORAM:
HON'BLE MR.JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. The abovementioned petitions have been filed before this Court under
Section 9 of the Arbitration and Conciliation Act, 1996, for an interim relief
of appointment of a Receiver for attachment and taking into
possession/custody the collateral security, i.e. medical equipments which
were got financed by Vasan Health Care Pvt. Ltd. for Vasan Eye Care
Centres.
2. The details of the machinery have been filed along with each of the
petitions as annexures.
3. The petitions are pertaining to eleven loan agreements, out of which
tenure of 9 loan agreements has already ended.
4. The list of loan agreement numbers along with the OMP numbers,
their details and loan terms are given as under:
S.No. Case Nos. Loan Agreement No. Loan Term
1. OMP (I)(Comm.) HSHFSRCEZ00366444 17.09.2012 to
1/2015 17.08.2015
HSHFSRCEZ00366445 26.03.2013 to
26.02.2015
HSHFSRCEZ00366446 26.03.2013 to
26.02.2015
2. OMP (I)(Comm.) HSHFSRCEZ00370294 27.12.2013 to
2/2015 27.11.2015
3. OMP (I)(Comm.) HSHFSRCEZ00369610 28.07.2013 to
3/2015 28.06.2016
4. OMP (I)(Comm.) HSHFSRCEZ00366564 27.09.2012 to
4/2015 27.08.2015
5. OMP (I)(Comm.) HSHFSRCEZ00366364 03.09.2012 to
5/2015 03.08.2015
6. OMP (I)(Comm.) HSHFSRCEZ00366485 21.09.2012 to
6/2015 21.08.2015
7. OMP (I)(Comm.) HSHFSRCEZ00366366 06.09.2012 to
7/2015 06.08.2015
8. OMP (I)(Comm.) HSHFSRCEZ00371887 27.09.2014 to
8/2015 27.08.2016
HSHFSRCEZ00371927 30.09.2014 to
30.08.2016
5. It is submitted there was a cross default agreement between the parties
with respect to all the agreements. The intention of the document was to
create a cross default and cross security between and among all. The
agreements, with respect to the accounts opened at that point of time or
thereinafter acquired. It was stipulated that the default under any account or
agreement shall be deemed to be a default under all other accounts and
agreements. A similar kind of cross collateral and cross default agreement
was executed with respect to all the loan agreements that are part of OMP
(I)(Comm) Nos.1 to 7.
6. Pertaining to Loan Legacy I.D. HSHFSRCEZ00371887 and
HSHFSRCEZ00371927 which are subject matter of OMP(I)(Comm) No.8,
the said covenant was made part of Master Loan Agreement itself, as the
said loan Account was for Rs.25 Crore, wherein money was released in 2
tranches, have 2 different Legacy ID.
7. It was stipulated in Annexure 1 to the agreement under the heading of
Security and Nature of Security that-
"3. Hypothecation over all assets given by the Borrower under
all existing facilities provided by the Lender or its affiliates to
the Borrower, including charge over the assets hypothecated
pursuant to the Deed of Hypothecation dated November 23,
2013."
8. Therefore, it is apparent on the face of all agreements and documents
executed and filed that all the medical equipment got financed by Vasan
Health Care Pvt. Ltd. from the petitioner will be considered as collateral with
respect to all the other loan agreements, so even if a loan account is clear,
however if there is outstanding in other account, the said machinery will still
be considered hypothecated with the petitioner.
9. It is submitted by the learned counsel for the petitioner that on 15th
December, 2015 the earlier Bench recorded on behalf of the respondent to
the affect that:
"The Petitioner advanced a loan of Rs.100 crores to the
Respondent, which was repayable alongwith interest at
Rs.1,11,44,36,166/- against which the Respondent had paid
Rs.71,77,44,906/- leaving the balance outstanding amount of
Rs.39,66,91,260/- which does not include any penal interest."
The contention of the learned counsel of respondent is not correct that
the respondent had paid Rs.87 Crore in total. The said submission has been
clarified in paragraph No.l4 of their preliminary objections dated 3 rd
February, 2016, wherein it is stated that a difference of Rs.15.22 Crores
(approx.) has been paid with respect to 6 other loan agreements between
petitioner and respondent, which are not subject matter of issue.
10. The statements of accounts filed on record by the petitioner are correct
and have not been denied in the preliminary objections filed by the
respondent.
11. In the order dated 15th December, 2015, the respondent was directed to
meet the petitioner's representatives on 21st December, 2015 to reconcile the
accounts.
The said meeting was postponed to 7th January, 2016 on respondent's
request and despite the fact that the Statement of Accounts were duly
received by the representatives of the respondent on 7 th January, 2016, as per
petitioner's counsel, nobody had reverted ever on the same.
12. Learned counsel for petitioner has rightly informed that as no contrary
evidence has been produced, thus, the total outstanding amount under the
loan agreements, subject matter of the OMP(I)(Comm.) No.1/2016 to
OMP(I)(Comm.) No.8/2016 are more than Rs.40 crore in excess as of today.
It is the argument of the learned counsel for the petitioner that the medical
equipments are being used by the respondent in its Eye Care Centres and it is
earning monies out of it. It is further submitted that such earnings are being
transferred and siphoned off into other accounts, companies and businesses
of the respondent's directors.
13. In compliance with the order dated 15th December, 2015, petitioner
had filed a Valuation Report of Medical Equipments, which was taken on
record on 21st January, 2016. As per the said report, inspection was
conducted all over India and showed that the market value of the Medical
Equipment, hypothecated to the petitioner, (as on 6 th January, 2016) is
Rs.37,13,09,059/-.
It is stated in the report that the Inspection was denied by the
respondent at Jalandhar and Ludhiana, and 13 centres were found to be
closed including the one at Pusa Road, Karol Bagh.
14. Learned counsel for the petitioner is pressing the prayer on urgent
basis because of the reason that now it has come to the notice of the
petitioner that the Landlord of the premises at Pusa Road Centre, due to non-
payment of arrears of rent, had filed a winding up petition before High Court
at Chennai and a suit for possession before this Court. The winding up
petition was compromised and the respondent had paid a sum of Rs.4.50
crore as full and final settlement towards the outstanding of more than Rs.5
crore. The respondent had also closed its said institute and shifted the
machinery out of there on 22nd January, 2016 without informing the
petitioner and this Court, even when the said fact was in its knowledge, as
the said compromise in Chennai happened in October 2015. The machinery
at the said institute is the property of petitioner, of which the petitioner is
seeking possession through receiver. The said document has been filed in the
OMP(I)(Comm) No.8/2016, but the petitioner has no knowledge as to where
the said Machinery has been shifted. The photographs filed along with the
Valuation Report would show that it is huge machinery which was financed.
15. It is alleged that it is also learnt now that the Vasan Health Care
Centre at Plot No.20, Block A-1, Janakpuri, has also been subject matter of
litigation, before this Court in CS (OS) No.3402/15. As per the order dated
30th November, 2015 the respondent was in arrears of rent of Rs.2.73 Crore.
16. The concern of the petitioner is that as per the order dated 30 th
November, 2015 passed in the said suit, a Local Commissioner was
appointed to inventorize the Medical Equipment lying at the centre. On the
next date of hearing i.e. 19th January, 2016 in the said suit bearing No. CS
(OS) No.3402/15, the respondent i.e. Vasan Health Care Pvt. Ltd. had put
appearance through counsel and the matter was sent to Mediation.
17. The apprehension of the petitioner is that respondent who may be
siphoning off its funds to other projects of the Directors, and is embroiled in
many financial irregularities which is making this company cash-strapped,
because of which, situations like CS(OS) 3402/15 are arising, wherein the
equipment hypothecated to the petitioner i.e. GE Capital Services India is
being attached and might get auctioned off in future, without respondent
disclosing about the hypothecation of the equipments with the petitioner.
It is alleged by the petitioner that there might be many matters and
litigations against Vasan Health Care Pvt. Ltd. with respect to its rented eye
centres, where the hypothecated machinery is in use. If the respondent is
defaulting on its rent payment there also, then many landlords must be
approaching the Courts all across the country and the Courts might be
passing orders of attachment of these assets, which are totally hypothecated
with GE Capital Services India, as the respondent despite the orders dated
21st January, 2016, 15th December, 2015, 23rd November, 2015, 18th
November, 2015 passed by this Court never declared about these
proceedings, even in its reply dated 3rd February, 2016.
18. Learned counsel for the respondent in his preliminary objections has
made the following pleas:-
i. The respondent are running more than 200 medical centers
throughout the country and a lot of equipments present in these
centers had been financed by the respondent from the petitioner
and a sum of Rs.100 crores had been taken by the respondent from
the petitioner, which was payable along with interest thereon and
as of December, 2015 the respondent had paid off, to the petitioner
a sum of Rs.87 crores, (Rs.69 crores towards principal and Rs.18
crores towards interest), though the petitioner disputes and states
that the respondent has paid only a sum of Rs.71,77,44,906/-
leaving a balance of Rs.39,66,91,260/- and over and above that the
petitioner is also claiming penal interest.
ii. Due to the general economic recession which is going on, the
respondent had suffered losses and there has been less footfall in
their medical centers/hospital resulting in default towards payment
of legally payable dues by the respondent to the petitioner.
iii. In order to show their bonafide as well as reach a settlement
between the parties, the respondent on their own on 15th
December, 2015 had given three cheques towards part payment of
the dues payable to the respondent, the details of which are
mentioned in the order dated 15th December, 2015.However, due
to financial difficulties and the fact that there was delay in
arranging the funds, the respondent through their counsel on 19th
January, 2016 had informed the counsel for the petitioner that they
require one week's time to honour the first installment of Rs.1
crore. The same was not honoured as because of legal
complication the accounts of respondent stood attached,
nevertheless the respondent through RTGS paid to the petitioner
the said sum of Rs.1 crore on 28th January, 2016.
iv. The valuations made therein with respect to the equipment are on a
very less scale as well as incorrect. The respondent submits that
the lesser valuation made by the petitioner in their report has been
made in order to prejudice this Court and to seek orders for
appointment of Receiver, but the fact is that on the showing of the
petitioner themselves, a sum of more than Rs.71 crores stands duly
paid by the respondent to the petitioner.
v. The equipments bought under various agreements have more than
10 years of life and as of now as admitted by the petitioner's
Valuers themselves the equipment have more than 70% of their
life still intact, as only 3-4 years have passed since they were
bought. Thus, the equipments are still usable and they have prime
value in market.
vi. The petition(s) filed before this Court are not at all maintainable as
the petitioner has given up its right under the Arbitration clause.
The clause No.7 in the agreements envisages how a dispute is to
be resolved. The relevant clause is reproduced herein below:-
"7. Dispute Resolution: The Parties shall endeavour to
settle any dispute arising in connection with the
interpretation, performance, termination of the
Agreement and/or the Security Document, or otherwise in
connection with the Agreement ("Dispute"), through
consultations and negotiations. If no settlement can be
reached through consultations of the Parties within 15
days of one Party delivering a written notice of the
Dispute to the other Party, then such matter shall be
finally settled by arbitration under the (Indian)
Arbitration and Conciliation Act, 1996, as may be
amended, or its re-enactment, by a sole arbitrator,
appointed by the Secured Party. The Parties agree with
respect to such arbitration that: (i) The arbitration
proceedings shall be conducted in English; (ii) The place
of arbitration shall be New Delhi, India; (iii) The
arbitration award shall be final and binding on the
Parties, and enforceable in accordance with its terms;
(iv) The arbitrators shall state reasons for their findings
in writing; (v) the costs of such arbitration shall be borne
by the losing Party or otherwise as determined in the
arbitration award; (vi) If a Party is required to enforce
an arbitral award by legal action of any kind, the Party
against whom such legal action is taken shall pay all
reasonable costs and expenses and attorneys' fees,
including any cost of additional litigation or arbitration
taken by the Party seeking to enforce the award; (vii)
When any dispute occurs which is submitted to
arbitration, except for the matter under dispute, the
parties shall continue to exercise their remaining
respective rights and fulfill their remaining obligations
under the Agreement."
It is submitted that the petitioner sent its first notice on 6 th April,
2015 wherein it demanded the sums due under the agreements.
Thereafter they sent further notice on 5th May, 2015 where under also
they reiterated their demand made earlier and terminated the Agreement
and did not at all refer the matter to arbitration under the Arbitration
and Conciliation Act, 1996. The third notice was sent on 7 th October,
2015 which also envisaged demand for recovery of monies and the
petitioner did not once again refer the matter to arbitration. The
respondent thus submits that the petitioner did not want the matter to be
referred for Arbitration and had thus given up its right under the
Arbitration and Conciliation Act, 1996 and since up till now no notice
to refer the matter for arbitration has been sent, it is stated that the
present petition(s) are thus barred and not maintainable as up till now
there has been no reference to be made under the Act, by the petitioner
and by sending the above mentioned notices under general law, the
petitioner has given up its right to refer the matter for arbitration and/or
proceedings there under and thus the present petition(s) are not
maintainable.
19. The matters have been discussed many times and it is informed to the
learned counsel for the respondent to take instruction in order to secure the
amount. However, there is no positive sign of the same. Thus the only
submission is that the value of the machinery is much high as stated in the
valuation report submitted by the petitioner. He submitted that after passing
of the order dated 15th December, 2015, the respondent had deposited a sum
of Rs.1 crore with the petitioner. Due to money crunch, the respondent is not
able to clear the amount due. He states that reasonable time be granted, so
that the respondent may be able to recover its position.
20. It is also a matter of fact that on 15th December, the respondent handed
over 3 cheques to the petitioner in Court dated 20th January, 2016 bearing
cheque No.195351 of amount Rs. 1,00,00,000/-, dated 20th February, 2016
bearing cheque No. 195352 of amount Rs 3,00,00,000/- and dated 20th
March, 2016 bearing cheque No. 195353 of amount Rs.3,00,00,000
respectively. The said cheque on 20th January, 2016 had got dishonoured due
to insufficiency of funds. On 21st January, 2016 in utter confidence and
under proper directions from the respondent, the counsel of respondent had
claimed and asserted that the said cheque will be honoured and the same may
be represented. The only one thing that was not mentioned in all honesty is
that the account of respondent with Axis Bank had been frozen vide notice
dated 5th January, 2016 by ESI. The said freezing of the account was due to
non-payment of arrears of ESI.
21. The counsel for the respondent had admitted that the Company is in
trouble, as the accounts have been frozen for non-payment of ESI and may
not be in position at present to provide any type of security and bank
guarantees to the petitioner. The cheques which were handed over with
elaborated confidence in the Court by the respondent on 15th December,
2015 and upon it getting dishonoured, on 22nd January, 2016 the respondent
reassured about its clearance upon being re-deposited, fully aware of the fact
that the same account had been frozen on 5th January, 2016. A sum of Rs.50
lakh was transferred through RTGS on 28th January, 2016 to the account of
petitioner by respondent. Even after reserving the judgments in the matters,
after mentioning fresh applications under Section 151 CPC, the respondent
sought directions for the petitioner to accept the securities so offered by the
respondent as well as to accept from respondent a sum of Rs.1 crore per
month starting from June, 2016 for the time being, as the respondent is
hopeful that it would be able to clear off the dues of the petitioner in a short
time.
22. It is also stated in the application(s) that in order to safeguard the
investments already made by the respondent to the tune of more than
Rs.1800 crores, out of which more than Rs.88 crores paid to the petitioner
and to safeguard the employment of more than 7500 employees out of which
there are 1800 Doctors and to keep the medical eye centres running which
are in the number of about 200, the respondent is willing to give further
properties, numbering 9, having pari-passu charge, which properties are with
City Union Bank Ltd. which has outstanding of about Rs.52 crores but the
properties are worth more than Rs.78 crores. Thus, the petitioner would be
validly secured with respect to the 10 properties as mentioned in the
applications.
23. It is also stated in the application that the petitioner be asked to accept
pari passu charge of immovable assets which are already mortgaged with
some other banks.
24. I agree with the submissions of the learned counsel for the petitioner
that the petitioner is a Financial Institution and is not covered under the
SARFAESI Act, 2002, as such, like Banks. The petitioner cannot seek
possession or sale of any such property under the said Act. Thus, creating a
second, third or pari passu charge of any such immovable property will not
help the petitioner. The petitioner is also not willing to accept any pari
passu charge of already mortgaged immovable properties of the respondent
with some banks, when it has collateral assets financed by it under the
present Loan Agreements hypothecated to it. The purpose of hypothecation
of movable assets is to sell the assets to recover the dues of the lender if the
borrower fails to repay the loan amount. The loan tenure of the 9 Loan
Agreements has already ended and the outstanding of the respondent is
approx. Rs.40 crores
25. The filing of the application after reserving the judgment would show
that the respondent wishes to further drag the decision of this Court. One
fails to understand that the respondent itself is not disclosing on its own as to
why so many institutes (being run by the respondent-Company) were found
locked during the assets valuation exercise conducted by the petitioner
during the pendency of the present petition. It is not denied that many
litigations are pending against the respondent-Company in forums across the
country. There is a force in the submission of the petitioner that either the
respondent-Company will be wound up or the hypothecated assets in
question may get attached in some other proceedings.
26. Considering the reality that the respondent-Company's accounts have
been seized and two cheques of Rs.3 crores each have been asked to be
returned by the respondent and the fact that the financial investigations are
being conducted against the respondent, the offer of Rs.1 crore payment
from June, 2016 onwards, coupled with the huge outstanding amount of
Rs.40 crores, the said repayment tenure is not acceptable to the petitioner
who submits that it would continue for the next 3-4 years being financially
unviable for the petitioner in the facts. However, the counsel submitted that
at the time of selling the machinery in question, the petitioner has no
objection, if the first option be given to the respondent to purchase the same
and if the respondent is unable to purchase, only then the same would be sold
in the open market.
27. There is a force in the submission of learned counsel for the petitioner
that the sole intention is to defer the event of repossession of the machinery
to gain advantage of time and in the meantime dispose of the assets
hypothecated to petitioner.
28. The other argument of the respondent's counsel that the petitions are
not maintainable as the petitioner has not taken necessary steps to invoke the
arbitration clause. There is a malafide on its part. They are deliberately
pressing the prayers for appointment of receiver, actually, the arbitration
proceedings ought to have been initiated in time. As they have failed to do
so, those petitions are liable to be dismissed.
29. It is a matter of fact that as per the Master Loan Agreement both the
parties, in all the OMPs as per Clause 6, on events of default occurring, the
secured party has the right to make a written request to the borrower - that is
when the first legal demand Notice dated 6th April, 2015 was issued by
petitioner to respondent with respect to all the Loan Agreements that are
subject matter of the present case.
30. It is a matter of fact that the borrower had failed to regularize its
accounts. As per Acceleration and Cancellation Clauses, the secured party
can declare the total outstanding amount and inform the borrower and has to
issue a written notice again.
Therefore, in all cases a Termination Notice dated 5th May, 2015,
recalling the whole amount due under the respective loan agreement was
issued. By issuance of these notices, the arbitration clause entered between
the parties does not get waived off, these notices are required as per the
terms and conditions of the agreement between the parties.
31. According to the general terms and conditions that are part of the
Master Loan Agreement as per interpretation clause, no waiver of any
written covenant can happen till any such waiver is made in writing duly
signed by both parties. The arbitration clause under these circumstances
cannot be waived off with the issuance of demand or Termination Notice. As
and when the reference notice under Section 21 of the Arbitration and
Conciliation Act is to be issued, the arbitration will commence, meanwhile
the relief claimed in Section 9 of the Act is permissible. Except in three
matters, loan term in other matters have already expired. The petitioner is
entitled to recover the said admitted amount as per agreement from the
respondent who has no defence at all. As they have failed to pay the amount,
there is no alternative to pass the orders as prayed for.
32. In view of these facts and circumstances, it is fit case where the prayer
for appointment of Receiver is liable to be allowed. Because of the financial
irregularities of the respondent, there is likelihood of every chance that
where the petitioner will lose its machines and any future order/ award/
decree, if passed in favour of the petitioner, the same may become non-
executable, without any machinery/equipment/asset of respondent to
secure/execute coupled with the fact that all machineries are scattered around
the country. It is just and convenient for the protection and preservation of
the collateral machinery, therefore the representative of the petitioner
Company, Sh.Gaurav Tyagi, be appointed as a receiver to take possession of
all the machineries and medical equipments financed by petitioner to
respondent. He can take the assistance of other authorised representatives of
the petitioner.
33. The receiver shall be at liberty to obtain the assistance of the local
police, in the event of any breach of peace by the person occupying the
machineries. The concerned SHO shall provide assistance to the receiver as
and when requested.
34. At the time of taking the custody of the machineries, the receiver shall
deliver copy of this order to the person from whom the possession is taken.
The receiver shall take the photographs of the machineries from different
angles along with the person(s) who were occupying the machineries as well
as the place of taking over the possession.
35. The receiver shall file his report before the Arbitrator within one
month of taking the custody of the machineries along with the photographs
and inventory mentioned above as well as the addresses where the
machineries are kept. In case, the respondents would be able to clear the
outstanding amount within four weeks, it would not be necessary to do such
exercise for selling the same in the market. Under these circumstances,
against the receipt of outstanding amount, the same be released to the
respective parties. However, in failure to make the payment, the receiver
would comply with the orders by selling the same. The petitioner is directed
not to create third party interest or to sell the same for the next four weeks.
At the time of selling the machineries in question- seized by receiver from
the premises, the first option be given to the respondents to purchase the
same as per market value. But if they fail to purchase the same, then the
same be sold in the open market. On receipt of sale proceed, after adjustment
of the loan amount, the remaining amount be given to the respondents
if the market value is more than the amount due. The authorized
representative of the respondents would be allowed to overview
the sale process if so required. As far as the fresh applications are concerned,
the offer given on behalf of the respondent is rejected, for the
reasons mentioned in para 24-27 of my order as this Court feels that it is
another attempt made by the respondent not to pay the said admitted amount
due.
36. The petitioner shall take the necessary steps in order to appoint the
Arbitral Tribunal in terms of the loan agreement within 30 days if already
not taken. The receiver shall submit copy of his report before the arbitrator.
The learned arbitrator will adjudicate the disputes between the parties
without any influence of my order passed in these petitions. The parties are
at liberty to apply to the learned Arbitrator for modification of this order if so
required under the circumstances.
37. The petitions are disposed of in the above terms. The findings arrived
at are tentative which shall have no bearing when the matters are decided by
the Arbitral Tribunal on merit after trial, if such situation would arise. The
pending applications also stand disposed of.
38. Copies of the order be given dasti to both the parties.
(MANMOHAN SINGH)
JUDGE
MARCH 08, 2016
