w w w . L a w y e r S e r v i c e s . i n



HDB Financial Services Limited, Ernakulam, Represented by Its Legal Officer (Kerala) & Authorized Officer, A.C. Pratheesh v/s M/s. Kings Baker Private Limited, Kottayam, Represented by Its Proprietor, Tom.P. Joseph & Others


Company & Directors' Information:- HDB FINANCIAL SERVICES LIMITED [Active] CIN = U65993GJ2007PLC051028

Company & Directors' Information:- K K FINANCIAL SERVICES PRIVATE LIMITED [Amalgamated] CIN = U65923MH2007PTC166978

Company & Directors' Information:- G U FINANCIAL SERVICES PRIVATE LIMITED [Active] CIN = U67120OR1989PTC017916

Company & Directors' Information:- W G F FINANCIAL SERVICES LIMITED [Active] CIN = U65993DL1992PLC048390

Company & Directors' Information:- C F S FINANCIAL SERVICES PRIVATE LIMITED [Active] CIN = U74899DL1994PTC062182

Company & Directors' Information:- D AND A FINANCIAL SERVICES PRIVATE LIMITED [Active] CIN = U74899DL1981PTC012709

Company & Directors' Information:- N B FINANCIAL SERVICES PRIVATE LIMITED [Active] CIN = U65993DL2006PTC144829

Company & Directors' Information:- T H FINANCIAL SERVICES PRIVATE LIMITED [Active] CIN = U67120WB1997PTC082650

Company & Directors' Information:- INDIA FINANCIAL SERVICES LIMITED [Strike Off] CIN = U65921WB1997PLC083511

Company & Directors' Information:- P C FINANCIAL SERVICES PRIVATE LIMITED [Active] CIN = U74899DL1995PTC070768

Company & Directors' Information:- S A FINANCIAL SERVICES PRIVATE LIMITED [Strike Off] CIN = U74899DL1994PTC063217

Company & Directors' Information:- A M FINANCIAL SERVICES LIMITED [Strike Off] CIN = U74140PB1993PLC013944

Company & Directors' Information:- AT FINANCIAL SERVICES LIMITED [Active] CIN = U67190MH2013PLC243267

Company & Directors' Information:- L N M FINANCIAL SERVICES PRIVATE LIMITED [Active] CIN = U65910WB1996PTC082013

Company & Directors' Information:- B M FINANCIAL SERVICES INDIA PRIVATE LIMITED [Active] CIN = U65990MH2001PTC132477

Company & Directors' Information:- S & F FINANCIAL SERVICES PRIVATE LIMITED [Active] CIN = U63040MH2004PTC149667

Company & Directors' Information:- A P S FINANCIAL SERVICES PRIVATE LIMITED [Active] CIN = U65993PB1995PTC016819

Company & Directors' Information:- D K S FINANCIAL SERVICES PVT LTD [Strike Off] CIN = U74899DL1995PTC069093

Company & Directors' Information:- A.C. AND COMPANY PRIVATE LIMITED [Active] CIN = U17290PB2013PTC037435

Company & Directors' Information:- H D FINANCIAL SERVICES PVT LTD [Active] CIN = U67120WB1992PTC056476

Company & Directors' Information:- B. K. FINANCIAL SERVICES PRIVATE LIMITED [Active] CIN = U67100MH2010PTC210099

Company & Directors' Information:- B R FINANCIAL SERVICES PRIVATE LIMITED [Amalgamated] CIN = U74899DL1995PTC068371

Company & Directors' Information:- JOSEPH AND CO PVT LTD [Active] CIN = U01211KL1954PTC000507

Company & Directors' Information:- D R FINANCIAL SERVICES PVT LTD [Strike Off] CIN = U67120WB1996PTC079376

Company & Directors' Information:- R K FINANCIAL SERVICES PRIVATE LIMITED [Active] CIN = U74899DL1995PTC067676

Company & Directors' Information:- V A FINANCIAL SERVICES PRIVATE LIMITED [Strike Off] CIN = U67190MH2003PTC138687

Company & Directors' Information:- R P FINANCIAL SERVICES INDIA PRIVATE LIMITED [Strike Off] CIN = U67190TZ2008PTC014376

Company & Directors' Information:- D G FINANCIAL SERVICES PVT LTD [Strike Off] CIN = U67110MP1995PTC009014

Company & Directors' Information:- D K FINANCIAL SERVICES PVT LTD [Strike Off] CIN = U65921CH1994PTC014219

Company & Directors' Information:- T C G FINANCIAL SERVICES PRIVATE LIMITED [Active] CIN = U67190MH2005PTC156330

Company & Directors' Information:- M K FINANCIAL SERVICES LIMITED [Active] CIN = U67120DL1986PLC024178

Company & Directors' Information:- V AND C FINANCIAL SERVICES PRIVATE LIMITED [Strike Off] CIN = U65993TG1994PTC018781

Company & Directors' Information:- E R JOSEPH & CO PVT LTD [Strike Off] CIN = U28920WB1955PTC022404

Company & Directors' Information:- LEGAL SERVICES INDIA PRIVATE LIMITED [Strike Off] CIN = U74110KA1996PTC020769

Company & Directors' Information:- E F FINANCIAL SERVICES PVT LTD [Strike Off] CIN = U65929WB1988PTC045117

Company & Directors' Information:- C & A FINANCIAL SERVICES (INDIA) PRIVATE LIMITED [Strike Off] CIN = U74992PB2008PTC032215

Company & Directors' Information:- A .S FINANCIAL SERVICES PVT LTD [Strike Off] CIN = U65921PB1994PTC014347

Company & Directors' Information:- V S FINANCIAL SERVICES PRIVATE LIMITED [Strike Off] CIN = U65993TN1995PTC030986

Company & Directors' Information:- B G FINANCIAL SERVICES PRIVATE LIMITED [Strike Off] CIN = U67110DL1995PTC066466

Company & Directors' Information:- TOM FINANCIAL SERVICES P LTD [Strike Off] CIN = U67190TN1996PTC034310

Company & Directors' Information:- V J FINANCIAL SERVICES PRIVATE LIMITED [Strike Off] CIN = U65993TG1994PTC018456

Company & Directors' Information:- S. R. FINANCIAL SERVICES PRIVATE LIMITED [Converted to LLP] CIN = U67120GJ2006PTC048918

Company & Directors' Information:- H C FINANCIAL LTD [Amalgamated] CIN = U65910GJ1982PLC004967

Company & Directors' Information:- D S FINANCIAL SERVICES PVT. LTD. [Strike Off] CIN = U51109WB1990PTC048460

Company & Directors' Information:- S R LEGAL SERVICES PRIVATE LIMITED [Active] CIN = U74140RJ2014PTC045816

Company & Directors' Information:- I. & I. FINANCIAL SERVICES PRIVATE LIMITED [Active] CIN = U93090MH2017PTC298584

Company & Directors' Information:- C. D. FINANCIAL SERVICES PRIVATE LIMITED [Active] CIN = U67190MH2012PTC230709

Company & Directors' Information:- S AND N FINANCIAL SERVICES PRIVATE LIMITED [Active] CIN = U67190TN2014PTC095802

Company & Directors' Information:- K & S FINANCIAL SERVICES PRIVATE LIMITED [Strike Off] CIN = U74120UP2011PTC044597

Company & Directors' Information:- U & I FINANCIAL SERVICES PRIVATE LIMITED [Strike Off] CIN = U74140TG2011PTC072616

Company & Directors' Information:- I & A FINANCIAL SERVICES PRIVATE LIMITED [Converted to LLP] CIN = U65923TG2012PTC079262

Company & Directors' Information:- S V LEGAL SERVICES PRIVATE LIMITED [Active] CIN = U74110TG2014PTC093676

Company & Directors' Information:- KINGS PRIVATE LIMITED [Strike Off] CIN = U74999TN1964PTC005230

Company & Directors' Information:- D AND P LEGAL SERVICES PRIVATE LIMITED [Active] CIN = U74140DL2005PTC135437

Company & Directors' Information:- R G FINANCIAL PRIVATE LIMITED [Strike Off] CIN = U65923DL1984PTC018552

Company & Directors' Information:- C T LEGAL SERVICES PRIVATE LIMITED [Strike Off] CIN = U93000HR2010PTC041131

Company & Directors' Information:- K H FINANCIAL SERVICES PRIVATE LIMITED [Strike Off] CIN = U74140GJ2004PTC044313

Company & Directors' Information:- K K LEGAL SERVICES PRIVATE LIMITED [Active] CIN = U74140GJ2015PTC082023

Company & Directors' Information:- A & G LEGAL SERVICES PRIVATE LIMITED [Under Process of Striking Off] CIN = U74110KL2013PTC035282

Company & Directors' Information:- M K M FINANCIAL SERVICES PVT. LTD. [Strike Off] CIN = U99999DL1995PTC067375

    OP(C). No. 1243 of 2018

    Decided On, 13 February 2019

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE SATHISH NINAN

    For the Petitioner: P. Paulochan Antony, G. Ajith Kumar, S. Sunil Kumar (Palakkad), Advocates. For the Respondents: V.N. Sasidharan, Advocate.



Judgment Text

1. While enforcing an interim measure ordered by the Arbitral Tribunal under section 17(1) of the Arbitration and Conciliation Act, 1996 (for short, "the Act"), is the District court entitled to pass any independent directions restricting the rights granted under the order passed by the Tribunal, is the short question that arises for consideration in this original petition.

2. Respondents availed a vehicle loan from the petitioner. Consequent to default in repayment of the loan, the account turned NPA. The loan was recalled and arbitral proceedings were initiated by the petitioner against the respondent.

3. In the course of the arbitral proceedings, the petitioner moved an application under Section 17 of the Act seeking permission to take possession of the vehicle. As per order dated 26.08.17, the Tribunal granted an order in favour of the petitioner permitting to take possession of the vehicle.

4. seeking enforcement of the order, the petitioner approached the District court under section 17(2) of the Act. The learned District Judge appointed a commissioner to take possession of the vehicle and to hand over the same to the petitioner, in tune with the order passed by the arbitrator.

5. Pursuant thereto, the commissioner took possession of the vehicle and handed over the same to the petitioner. Thereafter, the learned District Judge passed an order directing the petitioner to produce the vehicle before the court.

6. Aggrieved by the said direction, the petitioner filed an application as EA 115/18 seeking review of the same. As per the impugned order, the learned District Judge dismissed the application with the following directions:-

"The petitioner cannot take absolute custody of the vehicle during the proceedings of arbitration. but only interim custody for securing the debt. The petitioner can realise the amount only on sale of vehicle after the award.

Hence ordered to produce the vehicle for making interim arrangement of the vehicle on Kychit.

Issue notice to return the vehicle. For return of notice 26.05.2018"

The same is assailed in this original petition.

7. Heard sri.P. Paulochan Antony, learned counsel appearing for the petitioner and sri.V.N.sasidharan, learned counsel appearing for the respondents.

8. section 17 of the Act enables the Arbitral Tribunal to pass orders of interim measures including injunction, appointment of Receiver, custody or sale etc. By virtue of sub-section 2 of section 17, such orders are deemed to be orders of the court and are enforceable under the code of civil Procedure as orders of the court.

9. The court while exercising its jurisdiction under section 17(2) of the Act, is only enforcing the interim measure ordered by the Arbitral Tribunal under section 17(1) of the Act. while exercising the jurisdiction under section 17(2) of t h e Act, the court is not sitting in appeal over the correctness or otherwise of the interim measure ordered by the Tribunal under section 17(1) of the Act. The court is not entitled to modify or vary the directions given by the Arbitral Tribunal under section 17(1) of the Act. The jurisdiction of the court under section 17(2) of the Act is limited to enforcement of the order passed by the Tribunal under section 17(1) of the Act. The powers under section 17(2) of the Act is essentially different from the powers conferred on the court under section 37(2)(b) of the Act which provides an appellate jurisdiction on the court against an interim measure ordered by the Tribunal under section 17(1) of the Act. suffice to notice that the jurisdiction and powers of the court being exercised under section 17(2) of the Act and section 37(2)(b) of the Act are fundamentally different. The power of the court under section 17(2) of the Act is only to enforce the order of the Tribunal.

10. The court below while passing the impugned order has relied on the judgment of this court in Hari Kumar v. Shriram Transport Finance Co. Ltd. and Ors. [2018 (1) KLT 652]. There, the court was considering a proceeding under section 9 of the Act. while exercising the powers under section 9 of the Act, the orders regarding interim protection is made by the Arbi tral court and hence the court is entitled to pass appropriate directions in relation to the subject matter in respect of which the orders are passed. The said powers cannot be invoked by the court while exercising its jurisdiction under section 17(2) of the Act where the jurisdiction of the court is limited to enforcement of the order of the Tribunal. The following observation of the Division Bench in Hari Kumar v. Shriram Transport Finance Co. Ltd. and Ors. (supra), is of significance:-

"In the case at hand. the vehicle in question is definitely the subject matter of the hypothecation agreement. wherein the parties had agreed for an arbitration. Therefore, a question arises as to whether the 1st respondent is entitled to repossess the vehicle or to sell the same. Evidently it is a matter which need to be decided by the arbitral Tribunal, either in exercise of power vested under Section 17 of the Act or while passing the final award

11. In the instant case, as noticed supra, the District court has traversed beyond the jurisdiction and powers conferred under section 17(2) of the Act by directing that the vehicle shall not be taken absolute custody by the petitioner and further directing the petitioner to produce the vehicle for making interim arrangement on executing kychit. All those are matters falling within the realm of the Arbitral Tribunal which passed t

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he order under section 17(1) of the Act. That apart, it is noticed from the order of the Arbitral Tribunal, produced as Ext.P2 in this original petition, that an officer of the petitioner is appointed as a Receiver, to maintain the vehicle in safe custody. Therefore, adequate safeguard has been made by the Arbitral Tribunal in its order. The order impugned, as noticed, is without jurisdiction and unsustainable. Accordingly, the original petition is allowed. The impugned order is set aside and the execution petition will stand closed. The parties shall abide by the directions as may be issued by the Arbitral Tribunal.
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