Axis Bank Ltd. vs. Abhijeet Adhana
Arb. No. 513/18
04.05.2018
Present : Learned Counsel for the petitioner.
I have heard Counsel for petitioner on the prayer for appointment
of a Receiver by way of an exparte order to take possession of vehicle and
perused the records.
The present petition has been filed by the petitioner u/s 9 of
Arbitration & Conciliation Act 1996 thereby seeking interim relief for
appointment of a Receiver. As per case of the petitioner, the petitioner is a body
incorporated under the provisions of the Companies Act, 1956, and is doing the
banking business and advancing/financing loan etc. to the borrowers for their
purpose.
The respondent applied for a loan for the purpose of purchasing a
vehicle i.e. AUDI CAT D/AUDI bearing registration no. DL1CS8800, bearing
engine no. CRC192190 and chassis no. WAVZHE4L0FY00007 and the
petitioner granted loan of Rs. 24,99,999/ vide loan cum hypothecation
agreement dated 21.06.2017 bearing agreement no. UCR082402512033, which
was agreed to be repaid in 60 monthly installments of Rs. 54,356/ each.
However, respondent has paid an amount equivalent to only 7 installments and
has committed default in making payment of an amount equivalent to 3
installments along with other overdues and has not paid the same despite
numerous demands by the petitioner and service of notice dated 23.04.2018 and
that the respondent did not respond to the same. An affidavit of AR of the
petitioner bank has also been filed in support of claim of the petitioner.
It has been pointed out by the learned Counsel for petitioner that as per
Page 1 of 4
the information, the respondent is intending to dispose off/sell/transfer the
aforesaid vehicle and it is prayed that a Receiver be appointed to repossess the
same.
After hearing arguments of Counsel for petitioner and perusing the
records, I find that a prima facie case for passing of an order for appointment of
a Receiver to take possession of vehicle in question is made out.
Accordingly, Sh. Ravinder Singh, Officer of the petitioner bank is
appointed as a Receiver with the direction to repossess the vehicle i.e. AUDI
CAT D/AUDI bearing registration no. DL1CS8800, bearing engine no.
CRC192190 and chassis no. WAVZHE4L0FY00007 which is found in
possession of whosoever or at whatsoever place till further orders. Following
directions are issued to the Receiver for compliance:
1. Receiver is directed to note down the condition of the vehicle and to take
the photographs of the vehicle from all sides and shall ensure that vehicle
is kept in the same condition as it was repossessed.
2. Receiver to prepare inventory of the goods/accessories attached with the
vehicle and copy of same shall be delivered to the person from whom the
vehicle is repossessed.
3. An appropriate receipt shall be given to the person from whose custody
the vehicle is repossessed and the vehicle in question shall not be sold or
disposed off or parted with without due permission of the Court.
4. If the respondent makes the payment of the outstanding installments as on
date of possession, the Receiver shall release the vehicle in question to
the respondent on superdari subject to an undertaking by the respondent
to the Receiver for regular repayment of the future monthly installments
till the expiry of the tenure and a declaration not to part with the vehicle
or create third party interest in the vehicle until the entire amount is paid.
Page 2 of 4
5. If the respondent is not in a position to clear the entire outstanding
installments, the Receiver shall give him another opportunity to pay the
outstanding installments within 30 days of taking over the possession of
the vehicle and in case the respondent makes the payment of the
outstanding installments within the said period, the Receiver shall release
the vehicle to the respondent subject to an undertaking as aforementioned.
6. If the respondent does not make the payment of the outstanding amount to
the petitioner within 60 days, the Receiver, with the prior permission of
the Arbitrator, would be authorized to sell the vehicle in question in a
public auction with prior written notice (to be sent by speed post AD) of
the date of auction to the respondent at the address(es) mentioned in the
loan agreement or the address from where the vehicle is taken into
possession so that the respondent may also be able to participate in the
auction to enable the petitioner to fetch maximum amount from the sale
of the vehicle. The Receiver shall carry out video recording of the
auction proceedings and shall submit the same before the Arbitrator along
with his final report.
7. The Receiver shall inform the respondent the option of resolving the
dispute amicably by settlement in Mediation Centre, Rohini Courts,
Delhi, and shall also give a copy of this order to the respondent or to the
person at the time of repossessing the vehicle.
8. The petitioner shall refer the dispute to arbitration in terms of Arbitration
Clause 17 of Loan Agreement for appointment of an Arbitrator within 2
weeks from today and to inform the Court about the same on the next date
of hearing.
9. The Receiver shall be at liberty to take the assistance of the local police,
if required, for taking over the possession of the impugned vehicle. The
Page 3 of 4
concerned SHO shall provide assistance to the Receiver as and when
request. However, the Receiver shall not stop a running vehicle on the
road to forcibly take out the driver to take the possession of the vehicle.
The Receiver shall also not make any attempt to block the passage of a
car to bring it to a half to take its possession.
10. The Receiver shall avoid taking the possession of the vehicle if the
vehicle is occupied by a woman who is not accompanied by a male
member or an elderly, infirm or physically/mentally challenged person.
In such cases, the Receiver shall take the possession of the vehicle from
the borrower's residence.
11. The Receiver shall also ensure that the repossession of the vehicle does
not result in any breach of peace. In the event of any breach of peace, the
Receiver shall not proceed without assistance of police.
The Receiver is further directed to submit his report before this Court within 10
days of taking the custody of the impugned vehicle along with photographs and
inventory mentioned above.
Next date of hearing fixed in the present case is 20.08.2018. Also
issue notice of petition to the respondent on filing of PF/RC for 20.08.2018.
Copy of order be given dasti to Counsel for petitioner, as prayed.
(RAJNISH BHATNAGAR)
Distt. & Sessions Judge (N/W)
Distt. Court Rohini, Delhi
04.05.2018
Page 4 of 4
|