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Judgment
The Court : 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 1996").
From the affidavit of service filed on behalf of the petitioner it appears that copies of the application were forwarded to both the respondents by registered post with acknowledgement due and the respondent no.1 has received the same. However, the postal authority has returned the envelope forwarded to the respondent no.2 with an endorsement "insufficient address". It is to be noted that the address of the respondent no.2, at which the appliction was forwarded, was the address mentioned by him in the loan agreement mentioned hereinafter. It is submitted by Mr.Banerjee, learned advocate for the petitioner that the respondent no.2 has not informed the petitioner of any change of his address. Accordingly, the petitioner cannot be directed to once again forward the application to the respondent no.2. Let the affidavit of service filed on behalf the petitioner be kept on record.
It is the case of the petitioner that in terms of an agreement dated January 15, 2017 (hereinafter referred to as "the said agreement") entered into between the parties, the respondent no.1 obtained a loan for acquiring a fluid cooler, more particularly described in paragraph 3 of the application (hereinafter referred to as "the said asset") which 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 agreement between the parties.
Under the said agreement the respondent no.1 was obliged to repay the loan amount, together with agreed rate of interest and other charges to the petitioner by 35 monthly instalments of variable amounts but, after paying the first 5 instalments, it failed to pay the balance instalments. In spite of being called upon, the respondents failed and neglected to repay the outstanding dues of the petitioner and make over possession of the said asset to the petitioner. Therefore, the petitioner has terminated the said agreement and files this application to enforce right against the said asset. According to the petitioner, as on date of filing of this application Rs.1,27,34,619/- remains due and outstanding by the respondents to the petitioner. The petitioner has prayed for an order of appointment of a Receiver to take possession of the said asset from the respondent no.1 which is presently lying at in the city of Chennai, Tamil Nadu.
Having considered the materials on record I find that the petitioner has made out a prima facie case and the balance of convenience wholly lies in favour of an order being passed for appointment of Receiver as prayed in this application.
Accordingly, Mr.Ranjan Sinha, Advocate of Bar Library Club (1st floor) is appointed as the Receiver to take actual possession of the asset mentioned in paragraph 3 of the application. The petitioner shall pay the initial remuneration of 1800 GMs to the Receiver and shall also bear all the travelling expenses of the Receiver including air fare. The petitioner shall provide the Receiver with an accommodation befitting his status of a practicing advocate of this Court.
The respondents are directed to cooperate with the Receiver in order to enable him to take possession of the asset mentioned in paragraph 3 of the application.
If necessary, the Receiver shall approach the concerned Deputy Commissioner of Police / Superintendent of Police of the city of Chennai, Tamil Nadu for obtaining police assistance to carry out the direction passed by this Court upon deposit of requisite fees by the petitioner to the concerned authority. The concerned Deputy Commissioner of Police / Superintendent of Police of the Chennai Police shall render all police assistance to the Receiver to take possession of the asset mentioned in paragraph 3 of the application from the concerned respondents. Let this application appear under the same heading five weeks hence.
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 including Police Authorities shall act on certified website copies of this order.