Bhajanlal vs Chola Mandalam Investment And ...
2022 Latest Caselaw 9567 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

D.B. Civil Misc. Appeal No. 768/2022

Bhajanlal S/o Sh. Chutraram, Aged About 27 Years, R/o Pabu Nagar, Chaudha, Tehsil, Pipad City, Distt. Jodhpur. Through Its General Power Of Attorney Holder- Ashok S/o Sh. Pabu Ram Ji Aged About 28 Years, R/o Pabu Nagar, Chaudha, Tehsil Pipad City, Distt. Jodhpur.

----Appellant Versus

Chola Mandalam Investment And Finance Co. Ltd., Through Its Manager Plot No. 17, 1St Floor, K P Tower, Near Bombay Motor Circle, Upper Chopasni Road, Jodhpur.

----Respondent

For Appellant(s) : Mr. Saurabh Maheshwari

HON'BLE MR. JUSTICE VIJAY BISHNOI HON'BLE MR. JUSTICE ARUN BHANSALI

Judgment / Order

22/07/2022

This civil misc. appeal has been preferred by the

appellant challenging the order dated 25.2.2022 passed

by the Commercial Court No.1, Jodhpur (for short 'the

trial court) whereby, the application under Section 9 of

the Arbitration and Conciliation Act, 1996 (for short 'the

Act of 1996') filed by the appellant has been dismissed.

The facts of the case, not in dispute, are that the

respondent-finance company has advanced loan facility

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to the appellant for purchasing three transport vehicles

bearing registration numbers (A) RJ-19-GF-2376, (B) RJ-

19-GF-3229 and (C) RJ-19-GF-4629 (for short 'Vehicle-A,

Vehicle-B and Vehicle C') respectively in the year 2017.

As per the case of the appellant, he has not

defaulted in making payment of monthly installments in

respect of Vehicle-A, however, committed default in

payment of monthly installments qua Vehicle-B and

Vehicle-C. The Vehicle-A was seized by the recovery

agent of the respondent-finance company on 11.8.2021

for the reason that the appellant committed default in

making payment of monthly installments of Vehicle-B and

Vehicle-C.

As per the loan agreement executed between the

appellant and the respondent-finance company, there is

an arbitration clause, however, before appointment of

arbitrator, the appellant preferred application under

Section 9 of the Act of 1996 before the trial court with a

prayer that as an interim measure, the respondent-

finance company may be directed to release the Vehicle-A

seized by its recovery agent on 11.8.2021 and to issue

further directions not to seize the same in future.

The respondent-finance company has contested the

application claiming that as per Articles 10 and 11 of the

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loan agreement, it is well within its jurisdiction in seizing

Vehicle-A though there is no default in making monthly

installments in relation to that vehicle. It is claimed that

as per Article 10 (v) & (w) and Article 11 (a) & (c) of the

loan agreement, in the event of default under any other

agreements with the Company, the rights of the borrower

of the assets shall stand terminated void ipso facto and

the borrower is bound to deliver the assets to the

Company forthwith.

Learned trial court after taking into consideration the

Article 10 (v) & (w) and Article 11 (a) & (c) of the loan

agreement has come to the conclusion that the

respondent-finance company is very well within its

jurisdiction in seizing the Vehicle-A as the appellant has

committed default under the other agreements with the

company.

Assailing the order impugned, learned counsel for

the appellant has submitted that the trial court has

grossly erred in rejecting the application under Section 9

of the Act of 1996 preferred by the appellant without

taking into consideration the fact that when there is no

default on the part of the appellant in paying monthly

installments in relation to the Vehicle-A, the action of the

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respondent-finance company of seizing the said vehicle is

illegal.

Learned counsel for the appellant, therefore, has

prayed that the impugned order may be set aside and the

application filed by the appellant under Section 9 of the

Act of 1996 before the trial court be allowed.

Heard learned counsel for the appellant; perused the

material available on record as well as the loan

agreement (copy whereof is supplied by learned counsel

for the appellant), executed between the appellant and

the respondent-finance company while availing loan

facility for the purpose of purchasing Vehicles - A, B and

C respectively.

It is not in dispute that the appellant has executed

agreements with the respondent-finance company while

availing loan facilities for the purpose of purchasing

Vehicles - A, B and C respectively. It is also not in dispute

that the appellant has defaulted in paying monthly

installments in relation to the Vehicle-B and Vehicle-C.

It would be appropriate to quote the relevant

conditions of the loan agreement.

"10. EVENTS OF DEFAULT :

The following events shall constitute an "Event of Default."

           xxxx


                                        (5 of 6)               [CMA-768/2022]

v) The Borrower/Guarantor is in breach of any other loan/facility/any agreement with any other person; or

w) The Borrower/Guarantor commits any default under any other agreements with the Company in which the Borrower/Guarantor is either himself a Borrower/Guarantor

11. REPOSSESSION, TERMINATION AND COMPANY'S OTHER RIGHTS :

a) On the occurrence of any of the aforesaid Events of Default contained in Article 10, the rights of the Borrower over the Asset shall stand determined void ipso facto without any notice and the Borrower shall be bound to deliver forthwith the Asset to the Company in the same condition in which it was originally received by him with all accessories/modifications done by Borrower whatsoever (in the case of vehicle), ordinary wear and tear excepted. Failure or refusal of the Borrower to surrender the Asset shall constitute unlawful retention of which the Company shall be entitled to initiate criminal action, without prejudice to other rights legal remedies available to the Company.

c) Company's Other Rights :

i) It is specifically agreed between the parties that the charge created by the Borrower and/or the Guarantor as the case may be, with the Company under any other agreement shall be continuous regardless of all the dues under the said agreement being paid and the Company shall be at liberty to withhold the No Objection Certificate (NOC) on even completed agreements and to repossess and sell the vehicles/assets, without intervention of courts, given to the Borrower/Guarantor, under any other agreements towards realization of dues payable under this Agreement."

A careful reading of Article 10 (v) & (w) and Article

11 (a) & (c) of the loan agreement reveals that if there is

any breach of any condition on the part of the borrower

under any other agreements with the company, the same

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shall constitute an event of default and in that situation,

the rights of borrower stand void ipso facto without any

notice and the borrower shall be bound to deliver

forthwith the asset to the company and the company is at

liberty to repossess and sell the vehicle/assets.

In such circumstances, we are of the view that the

learned trial court has not committed any illegality in

rejecting the application under Section 9 of the Act of

1996 preferred by the appellant vide order impugned.

Resultantly, there is no force in this civil misc. appeal

and the same is hereby dismissed.

Stay petition is also dismissed.

(ARUN BHANSALI),J (VIJAY BISHNOI),J

17-msrathore/-

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