SREI EQUIPMENT FINANCE LTD. vs MALAY KUMAR PAHADASINGH & ANR.

The Court : This is an application under Section 9 of the Arbitration & Conciliation Act, 1996 as amended by the Act 3 of 1996 (in short ‘the Act of

1996’).From the affidavit of service filed on behalf of the petitioner, it appears that the copies of this application have been served upon both the

respondents. However, none appears on behalf of any of the respondents to oppose this application.

Let, the affidavit of service be kept with the record. It is the case of the petitioner that in terms of the agreement dated August 22, 2015 (hereinafter

referred to as ‘the said agreement’) the respondent no.1 obtained a loan of Rs.17,11,000/- and purchased a construction equipment, mentioned

in Annexure- “Aâ€​ to the application. The said equipment 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 31 of variable amount, but after paying the

first 16 instalments and part of 17 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 has

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.10,49,377/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 Khurdah Road in the state of Orissa.

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, Ms. Mahuya

Dutta Biswas, Advocate of Bar Association Room No. 9, is appointed as a Receiver to take actual physical possession of the hypothecated asset.

After taking possession of the hypothecated asset, the Receiver shall keep the same, in her custody, at a safe place to be provided by the petitioner.

The Receiver shall be paid an initial remuneration of 1500 GMs by the petitioner. The petitioner shall also bear the travelling expenses of the Receiver

and shall provide her a befitting accommodation at the relevant places in the State of Orissa. Needless to mention that a competent officer of the

petitioner shall all along accompany the Receiver in the State of Orissa.

If necessary, the Receiver shall approach the Superintendent of Police of the concerned District to take 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 all

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

Let this application appear two weeks after reopening of the Court after summer vacation. The Receiver shall file his report on the next date of

hearing. Urgent photostat certified copy of this order, if applied for, be made available to the parties subject to compliance with the requisite

formalities. All parties, including the Receiver and the concerned police authorities shall act on the copy of the photostat certified copy of this order.