At, High Court of Judicature at Calcutta
By, THE HONOURABLE MR. JUSTICE ASHIS KUMAR CHAKRABORTY
For the Appearing Party: D. Bhaduri, S. Chakraborti, Advocates.
1. 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 1996").
2. From the affidavit-of-service filed on behalf of the petitioner, it appears that the copies of the application were forwarded to both the respondents and the respondent no.1 borrower has already received the same. However, from the track report issued by the Postal Department, it is not clear whether the respondent no.2 guarantor has received a copy of this application.
3. Let the affidavit of service filed on behalf of the petitioner be kept on record. However, none appears on behalf of the respondent no.1 borrower against whom the petitioner has prayed for relief in this application.
4. The petitioner claims that in terms of an agreement dated September 22, 2015 (hereinafter referred to as "the said agreement") between the parties, the respondents obtained a loan of Rs. 34,47,000/- for purchasing one backhoe loader as mentioned in paragraph 3 of the petition. The said asset stands hypothecated with the petitioner. The respondent no.2 as the guarantor is a party to the said agreement which contains an arbitration agreement.
5. Although the respondent no.1 was obliged to repay the dues of the petitioner, together with the agreed rate of interest and pay other charges to the petitioner by 34 monthly instalments of Rs. 1,20,600/- each commencing from November, 2015, but after paying the first 19 instalments and part of 20th instalment, it failed to pay any of the balance instalments.
6. According to the petitioner, as on the date of filing of this application, Rs. 20,70,252/- remains due and owing by the respondents and in spite of being called upon the respondents refused to repay its dues and make over possession of the asset to the petitioner. Thus, after terminating the said agreement, the petitioner has filed this application to enforce its rights against the hypothecated asset, which are presently lying at Kalahandi in the State of Odisha. The petitioner has prayed for, inter alia, an order for appointment of a Receiver to take possession of the hypothecated asset.
7. Having considered the materials on record, I find the petitioner has made out a prima facie case of the balance convenience wholly lies in favour of the petitioner for obtaining an ad-interim order for appointment of Receiver as prayed for.
8. Accordingly, Ms. Rima Das, Advocate, Bar Association Room No. 16, is appointed as the Receiver to take the actual possession of the hypothecated asset described in paragraph 3 of the petition.
9. 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.
10. The respondents are also directed to render all assistance to the Receiver to implement this order.
11. The petitioner shall pay an initial remuneration of 1600 Gms to the Receiver. The petitioner shall bear all travelling expenses of the Receiver and provide her with a befitting accommodation at the relevant places she would be required to visit to carry out this order.
12. If necessary, the Receiver shall approach the concerned Superintendent of Police of the district for police assistance, who shall render all assistance to the Receiver to carry out this order. The petitioner shall deposit the requisite fees for obtaining police assistance.
13. Let this
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application appear under the same heading 5 weeks hence, when the Receiver shall file her report. 14. Urgent certified photostat copies of this order, if applied for, be supplied to the petitioner upon compliance with all requisite formalities. 15. The parties and all concerned including the Police Authorities shall act on certified photostat copies of this order.