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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 (in short “the Act of 1996â€). On
an earlier occasion when the matter was taken up for hearing on June 14, 2018 Mr. Rakesh Singh, Advocate appeared for the respondents and sought
for an adjournment. He undertook to file his Vakalatnama before this Court during the course of that day. However, on June 26, 2018 when the
application was taken up for hearing none appeared for the respondents.
From the affidavit of service filed on behalf of the petitioner, it appears that due to lack of instruction the said Rakesh Singh, Advocate is unable to
represent the respondents before this Court. 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 June 30, 2017 (hereinafter referred to as “the said agreementâ€) the respondent no.1 obtained a
loan of Rs.58,34,400/- for acquiring the asset mentioned in paragraph 2 of 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 59 monthly instalments of Rs.1,26,923/- each but after paying the first six instalments and part of seven instalment, it
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 Shyambazar, Kolkata.
According to the petitioner, as on the date of filing of this application, there remains an amount of Rs.56,87,978.98 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, Ms.
Supriya Dubey, Advocate, 11, Old Post Office Street, 3rd Floor is appointed as the Receiver to take the actual possession of the asset, mentioned in
paragraph 2 of 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 1400 GMs by the petitioner. The petitioner shall also bear the travelling expenses of the Receiver
at the relevant place. Needless to mention that a competent officer of the petitioner shall all along accompany the Receiver. If necessary, the
Receiver shall approach the concerned Deputy Commissioner of Kolkata Police for obtaining police assistance to implement this order. If the
petitioner deposits the requisite fees with the concerned authorities, the Deputy Commissioner of Kolkata 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 three 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.