Magma Fincorp Limited vs Sahabuddin & 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 the respondents have received the copies of the application. Let the

affidavit filed on behalf of the petitioner be kept on record. However, none appears on behalf of any of the respondents to oppose this application.

Accordingly, this application is taken up for hearing in the absence of the respondents.

It is the case of the petitioner that in terms of the agreement dated December 14, 2016 (hereinafter referred to as “the said agreementâ€) the

respondent no.1 obtained a loan of Rs.23,47,135/- for acquiring the asset mentioned in Annexure “A†to 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 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 44 monthly instalments of variable amount, but after paying the first fifteen and portion of the sixteenth instalment, 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 presently lying at Kanojia, Giridih, in the state of Jharkhand.

According to the petitioner, as on the date of filing of this application, there remains an amount of Rs.16,00,825/- due and owing by the respondents to

the petitioner.

Considering 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 hypothecatedasset.

Accordingly, Mr. Srenibash Misra, Advocate, Bar Association Room No. 16 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 1800 GMs by the petitioner. The petitioner shall also bear the travelling expenses of the Receiver,

including air fair and provide him with a befitting accommodation at the relevant places. Needless to mention that a competent officer of the petitioner

shall all along accompany the Receiver.

If necessary, the Receiver shall approach the Superintendent of Police, Giridih, in the state of Jharkhand for obtaining police assistance to implement

this order. If the petitioner deposits the requisite fees with the concerned authorities, the Superintendent of Police 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, under the same heading, after eight weeks. The Receiver shall file his report on the next date of hearing.

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.