At, High Court of Judicature at Calcutta
By, THE HONOURABLE MR. JUSTICE ASHIS KUMAR CHAKRABORTY
For the Petitioner: Swatarup Banerjee, S. Chakraborty, Advocates. For the Respondent: ------
1. This is an application under Section 9 of the Arbitration and Conciliation Act, 1996, as amended by Act 3 of 2016.
2. From the affidavit-of-service filed on behalf of the petitioner, it appears that in terms of the direction passed on December 19, 2017, the petitioner has caused publication of the notice of this application in two newspapers widely
Please Login To View The Full Judgment!
circulated in the State of Odisha.
3. Let the affidavit of service filed on behalf of the petitioner be kept on record. However, none appears on behalf of any of the respondents to oppose this application.
4. The petitioner claims that in terms of an agreement dated April 22, 2015 (hereinafter referred to as "the said agreement") between the parties, the respondent No. 1 obtained a loan of Rs. 22,22,880/- for purchasing an equipment as mentioned in paragraph 3 of the application. The said equipment stands hypothecated with the petitioner. The respondent No. 2 as the guarantor is a party to the said agreement, which also contains an arbitration agreement.
5. Although the respondent No. 1 was liable to repay the loan amount, together with the agreed rate of interest and pay other charges to the petitioner by 46 monthly instalments at the rate of Rs. 61,000/- each but after payment of the first fifteen instalments and part of sixteen instalment, he defaulted in making payment of the balance instalments.
6. According to the petitioner as on the date of filing of this application, Rs. 21,46,690/- remains due and owing by the respondent no. 1 and in spite of being called upon, the respondents refused to repay their dues and make over possession of the equipment to the petitioner, which is presently lying at Nayagarh, P.S. Daspalla, Odisha. Thus, the petitioner claims to have terminated the said agreement and has filed this application to enforce its rights against 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 and inconvenience wholly lies in favour of the petitioner for obtaining an ad-interim order for appointment of Receiver as prayed for.
8. Accordingly, Mr. Abhijit Basu, Advocate, of Bar Association (Room No. 4), is appointed as the Receiver to take the actual physical possession of the asset.
9. After taking possession of the hypothecated asset, the petitioner shall keep the same, in his custody, at a safe place to be provided by the petitioner.
10. The respondent no. 1 is also directed to render all assistance to the Receiver to implement this order.
11. The petitioner shall pay an initial remuneration of 1500 Gms. to the Receiver. The petitioner shall bear all travelling expenses of the Receiver and shall provide her with befitting accommodation (s) at all the relevant places.
12. Needless to mention that a competent officer of the petitioner shall all along accompany the Receiver in the State of Odisha.
13. If necessary, the Receiver shall approach the concerned Superintendent of Police of the district for police assistance and the police authorities shall render all necessary assistance to the Receiver to carry out this order.
14. Let this application appear under the same heading four weeks hence, when the Receiver shall file his report.
15. Urgent certified photostat copies of this order, if applied for, be supplied to the petitioner upon compliance with all requisite formalities.
16. The Receiver, all concerned parties, as well as the Police Authorities shall act on copies of certified photostat copies of this order.