Magma Fincorp Limited vs Manoj Kumar And Anr.

The Court : This is an application under section 9 of the Arbitration and Conciliation Act, 1996, as amended by Act 3 of 2016. From the affidavit of

service filed on behalf of the petitioner it appears that copies of this application were forwarded to the respondent by Speed Post with AD and they

have received the same. Let, affidavit of service filed on behalf of the petitioner be kept on record.

However, none appears on behalf of the respondent to oppose this application. It is the case of the petitioner that in terms of the agreement dated

November 18, 2016 (hereinafter referred to as “the said agreementâ€​) the respondent no.1 obtained a loan of Rs.18,45,185/- for acquiring the asset

mentioned in Schedule A of the application.

The said asset remains hypothecated in favour of the petitioner. The respondent no.2, as the guarantor, is a party to the said agreement which also

contains an arbitration clause. Under the said agreement, the respondent no.1 was obliged to repay the amount financed by the petitioner together with

the agreed rate of interest and other charges by way of 35 monthly instalments of Rs.66,350/- each, but after paying the first 8 and part of 9th

instalments, he failed to pay the balance instalments.

In spite of being called upon by the petitioner, the respondents failed to repay the dues of the petitioner or to make over possession of the

hypothecated asset to the petitioner. Therefore, the petitioner terminated the said agreement and filed this application to enforce its rights against the

hypothecated asset.

According to the petitioner, as on the date of filing of this application, there remains an amount of Rs.18,02,357/- due and owing by the respondents to

the petitioner. It is submitted on behalf of the petitioner that the hypothecated asset is presently lying at Palwal, in the state of Haryana.

Having considered the materials on record, I find that the petitioner has made out a prima facie case and the balance of convenience also lies in

favour of the petitioner for obtaining an order for appointment of a Receiver to take possession of the hypothecated asset.

Accordingly, Mr. Tapas Banerjee, Advocate of Bar Library Club (1st Floor) is appointed as the Receiver to take the actual possession of the asset,

mentioned in Annexure- “A†to the application. After taking possession of the hypothecated asset, the Receiver shall keep the same at a safe

place to be provided by the petitioner.

The Receiver shall be paid an initial remuneration of 2000 GMs by the petitioner. The petitioner shall also bear the travelling expenses of the Receiver,

including air fair and shall provide him a befitting accommodation at the relevant places in the State of Haryana. Needless to mention that a competent

officer of the petitioner shall all along accompany the Receiver in the state of Haryana.

If necessary, the Receiver shall approach the Superintendent of Police of the concerned District for obtaining police assistance to implement this

order. If the petitioner deposits the requisite fees with the concerned authorities, the Superintendent of Police of the concerned district shall render

necessary police assistance to the Receiver to take actual physical possession of the hypothecated asset from the concerned respondent.

Let, this application appear after six weeks, when the Receiver shall file his report. Urgent certified website copies of this order, if applied for, be

supplied to the petitioner upon compliance with all requisite formalities. The Receiver and all concerned parties, including the Police Authorities shall

act on certified website copies of this order.