Delhi High Court
Anil Kumar Singh vs M/S Mahindra & Mahindra Finance ... on 4 September, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 357/2016
% 4th September, 2017
ANIL KUMAR SINGH ..... Appellant
Through: Mr. K.M.M. Khan and Mr.
N.N. Bain, Advocates.
versus
M/S MAHINDRA & MAHINDRA FINANCE SERVICE PVT LTD
..... Respondent
Through: Mr. Vardhman Kaushik,
Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
FAO No.357/2016 and C.M. Appl. No. 205/2017 (for condonation
of delay of 270/712 days in filing the appeal)
1. This first appeal under Section 37 of the Arbitration and
Conciliation Act, 1996 (hereinafter referred to as „the Act‟) is filed by
the borrower impugning the order dated 30.5.2013 passed under
Section 9 of the Act.
FAO No.357/2016 Page 1 of 6
2. By the impugned order a Receiver has been appointed with
respect to vehicle Mahindra Champion and which was purchased by
the appellant as per the loan given by the respondent. The impugned
order reads as under:-
"30.05.2013
Present: Counsel for petitioner.
Present petition has been filed by the petitioner under Section 9 of
the Arbitration and Conciliation Act seeking interim relief for appointment
of Receiver.
Petitioner is a company incorporated under the Companies Act,
which is engaged in the business of rendering financial/credit facility in the
form of loan.
Respondent applied for loan for the purpose of purchasing vehicle
make MAHINDRA CHAMPION bearing Engine no. A0J0382461 and
chasis no. A5J14899. The loan of Rs.305795/- was acceded to the
respondent vide written Loan um Hypothecation cum Guarantee
Agreement bearing contract no. 1354624, and the same was agreed to be
repaid by the respondent in 35 equated monthly installments of Rs. 8737/-
each. The respondent has paid only 24 installments and 7 installments are
unpaid. As the date respondent is unable to pay a sum of Rs.112922/- to
the petitioner. As the respondent failed to repay the loan amount and
interest thereon despite numerous demands, petitioner company issued a
legal notice dated 06.05.13 calling the respondent to make the payments.
However, respondent did not respond the said notice hence this petition.
Ld. Counsel for petitioner has pointed out as per the information, the
respondents are intending to dispose off/sell/transfer the said vehicle and
hence, petitioner has prayed that a Receiver be appointed to repossess the
vehicle.
Prima facie, a case for grant of an order for interim custody of the vehicle,
so as to secure the amount due and payable to the petitioner by the
respondents appear to be made out. Delaying or postponing the grant of
interim protection to which the petitioner appears entitled to is likely to
defeat the object of filing the petition.
FAO No.357/2016 Page 2 of 6
In view of the same Sh. BAHADUR SINGH, authorized representative
officer of the petitioner company is appointed as a receiver in this case to
take into his custody the vehicle/machine make MAHINDRA
CHAMPION bearing Engine no. A0J0382461 and chassis no. A5J14899
from the respondent, his agents or any other person found possessing the
vehicle. Copy of identity card of representative of the petitioner showing
that he is working with the petitioner company has already been filed.
Following directions accordingly issued for the Receiver:
An inventory is 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 give 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 & inventory.
The receiver will inform the respondent the option of resolving the dispute
amicably by settlement in Mediation Cell, Tis Hazari Courts, 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 23 of
loan agreement for appointment of an arbitrator within four weeks from
today and inform the Court about the same on the next date.
The receiver shall take the police aid, if required.
With the aforesaid directions, the application stands
disposed of accordingly. Let copy of this order be served upon the
respondent within 2 days of passing of this order and the receipt
showing such compliance same shall be filed on record by the
petitioner alongwith his affidavit one week from today.
FAO No.357/2016 Page 3 of 6
Ordered accordingly. At request, copy of this order be
given dasti to the petitioner. Now to come up on the date fixed for
service report of the respondent."
3. Appellant had challenged the self-same order dated 30.5.2013
in CRP No.172/2013 titled as Anil Kumar Singh Vs. M/s Mahindra
and Mahindra Finance Service Pvt. Ltd.. By the order dated
25.9.2013 CRP No. 172/2013 was dismissed by a Learned Single
Judge of this Court, and this order has been filed by the appellant
himself at pages 99-100 of the paper book of this appeal and this order
reads as under:-
"CM No.15129/2013
Exemption allowed, subject to all just exceptions.
The application is disposed of.
C.R.P. 172/2013 and CM No.15128/2013
The petitioner has assailed the order dated 30th May, 2013 whereby on
filing of an application under Section 9 of the Arbitration and Conciliation
Act, 1996 the relief was granted to the respondent by appointment of a
receiver for taking the custody of the vehicle. While passing the order it is
specifically mentioned that at the time of taking the vehicle the receiver
shall take photographs of the repossessed vehicle from all sides and shall
ensure that the vehicle is kept in the same condition as repossessed. An
appropriate receipt shall be given to the person from whose custody of the
vehicle is taken. The vehicle in question shall not be sold and disposed of or
parted with without the due permission of the court. It was also observed
specifically that in case the respondent will clear all the instalments due, the
vehicle will not be repossessed and if repossessed, the vehicle shall be
released within three days from the date of receipt of instalments due. This
Court is of the view that the order passed by the learned trial court is
FAO No.357/2016 Page 4 of 6
reasonable which cannot be interfered with in the present revision petition
filed under Section 115 of the Code of Civil Procedure. There is no merit in
the petition. The same is dismissed."
4. Learned counsel for the appellant says that his appeal lies
because earlier appeal was not maintainable under the Code of Civil
Procedure, inasmuch as, order passed under Section 9 of the Act is to
be challenged under Section 37 of the Act, however in my opinion the
heading of a petition is not material and it is seen that the order passed
by a Learned Single Judge of this Court on 25.9.2013 is an order on
merits holding that the order of the court below dated 30.5.2013 is
correct. The CRP No.172/2013 filed by the appellant was dismissed
by observing that there is no merit in the petition.
5. Learned counsel for the appellant also argues that appeal was
not heard on 25.9.2013 as some proxy counsel had appeared, however,
in my opinion, this argument is totally frivolous and is an endeavor by
the appellant to over reach proceedings in the Court of law.
6. It is also noted that this appeal is in fact filed with delay of 712
days, and really though there is no valid ground for condonation of
delay, but since the appeal is dismissed on merits the delay is formally
condoned. Since, the challenge to the order dated 30.5.2013 already
FAO No.357/2016 Page 5 of 6
stands dismissed by dismissing on merits CRP No.172/2013, this
appeal is accordingly dismissed with costs of Rs.20,000/-. Costs shall
be paid within six weeks from today.
SEPTEMBER 04, 2017 VALMIKI J. MEHTA,J.
AK
