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Judgment
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 the application forwarded to the respondents by speed post with A/D have been received by them. However, none appears on behalf of any of the respondents to oppose this application. Let the affidavit of service filed on behalf of the petitioner be kept on record.
The petitioner claims that in terms of an agreement dated June 22, 2016 (hereinafter referred to as "the said agreement") between the parties, the respondent No. 1 obtained a loan of Rs. 41,35,726/- for purchasing the assets mentioned in Annexure- "A" to the application. The said assets stand hypothecated with the petitioner. The respondent No. 2 as the guarantor is a party to the said agreement, which also contains an arbitration agreement.
Although under the said agreement, the respondent No. 1 was obliged to repay the dues of the petitioner, together with the agreed rate of interest and other charges by way of 46 monthly instalments of variable amounts, but after paying the first 8 instalments and part of 9th instalment, the respondent no.1 has defaulted in making payment of the balance instalments.
According to the petitioner, as on the date of filing of this application, Rs. 39,33,726/- remains due and owing by the respondents and in spite of being called upon, the respondents refused to repay their dues and make over possession of the hypothecated assets to the petitioner. Therefore, the petitioner has terminated the said agreement and filed this application for enforcing its right against the hypothecated assets which are presently lying at Dhenkanal, Orissa.
Having considered the facts and averments made by the petitioner, I find the petitioner has made out a prima facie case and the balance convenience wholly lies in favour of the petitioner for obtaining an ad-interim order for appointment of Receiver as prayed for.
Accordingly, Ms. Debina Mitra, Advocate, of Ladies'' Bar Association, High Court, Calcutta is appointed as the Receiver to take actual possession of the hypothecated assets.
After taking possession of the hypothecated assets, the petitioner shall keep the same, in his custody, at a safe place to be provided by the petitioner.
The respondent no. 1 is also directed to render all assistance to the Receiver to implement this order.
The petitioner shall pay an initial remuneration of 1500 GMs. to the Receiver. The petitioner shall bear all travelling expenses of the Receiver. The petitioner shall also provide the Receiver with a befitting accommodation at all the relevant places she would be required to visit to carry out this order.
Needless to mention that a competent officer of the petitioner shall all along accompany the Receiver in the State of Orissa.
The Superintendent of Police in the district of Dhenkanal is directed to render all police assistance to the Receiver in order to enable her to carry out this order, upon payment of requisite fees by the petitioner.
Let, this application appear under the same heading 4 weeks hence. The Receiver shall file his report on the next date of hearing.
Urgent certified photostat 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 photostat copies of this order.