Magma Fincorp Ltd vs Yash Dwivedi & Anr

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This is an application under section 9 of the Arbitration and Conciliation Act, 1996, as amended by Act 3 of 2016 (in short “the Act of 1996â€​).

From the affidavit of service filed by the petitioner it appears that when the respondents were approached for personal service of this application they

refused to accept the same. Let the affidavit of service filed be kept on record. 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 March 24, 2016(hereinafter referred to as “the said agreementâ€) the

respondent no.1 obtained a loan of Rs.18,70,000/- for acquiring the asset mentioned in Paragraph 6 of the petition. The said asset remained

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

clause.

Under the said agreement, 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 47 monthly instalments, but after paying the first 19 instalments and part of the 20th 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.

According to the petitioner, as on the date of filing of this application, there remains an amount of Rs. 14,23,000/- 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 Kanpur, in the state of Uttar Pradesh.

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 hypothecated asset.

Accordingly, Mr. Mohit Kr. Dey, Advocate of Bar Association Room No. 13 is appointed as the Receiver to take the actual possession of the asset,

mentioned in Paragraph 6 to the petition. 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

and provide him 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, of the concerned District in the State of Uttar Pradesh 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 in the State of Uttar Pradesh shall render necessary police assistance to the Receiver to take actual physical possession of the

hypothecated asset from the concerned respondent.

The respondents are directed to forthwith inform the petitioner of the present whereabouts of the hypothecated asset.

Let this application appear under the same heading, after six 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.