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2013 DIGILAW 566 (DEL)

FULLERTON INDIA CREDIT CO. v. NABI

2013-03-20

VEENA BIRBAL

body2013
JUDGMENT VEENA BIRBAL, J. (ORAL) CM No.4870/2013 (exemption) Allowed, subject to just exceptions. CM(M) 336/2013 1. The petitioner has filed a petition under Section 9 of Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the said Act’) before the Ld. ADJ for appointment of receiver, grant of injunction and seeking re-possession of vehicle borrowed by the respondent. 2. In the petition under Section 9 of the Act, it is alleged that a loan of Rs.37,000/- was granted to the respondent vide loan agreement dated 22.03.2012 for the purchase of two wheeler to be repaid in equal monthly instalments of Rs.1976/- and the tenure of loan was 24 months. The case of the petitioner is that only 2 instalments were received from respondent, thereafter, he had defaulted in the payment, as such, demand of Rs.41,671.56/- was made from the respondent vide notice dated 23.11.2012 but the respondent did not make any payment and accordingly, the aforesaid petition was filed by the petitioner. 3. Before the Ld. ADJ prayer was made for ex parte order of re-possession of vehicle by appointing a receiver. However, ld. ADJ vide impugned order has declined the same and has issued notice by observing that no ground is made out for the grant of ex parte order of re-possession of the vehicle. The notice has been issued to respondent for 27.04.2013. 4. Aggrieved with the said order, the present petition is filed. 5. Ld. counsel for petitioner has contended that petitioner has made out a prima facie case by showing that the default has been made by the respondent in repayment as such respondent has no right to continue with the possession of the mortgaged property i.e. vehicle in question. The notice of demand has also been sent to respondent despite that the respondent has not paid the amount. In these circumstances, ld. trial court ought to have protected the interest of petitioner by granting ex parte order of repossession of vehicle by appointing a receiver. 6. The trial court after considering the facts and circumstances of the case has issued notice to the respondent. It is not a matter of right to get the ex parte order of re-possession of vehicle in such cases. 6. The trial court after considering the facts and circumstances of the case has issued notice to the respondent. It is not a matter of right to get the ex parte order of re-possession of vehicle in such cases. The person applying for ex parte order has to satisfy the court that there exists a prima facie case in his favour and has to establish that irreparable injury would be caused to him and that balance of convenience also lies in his favour in a case where the vehicle is to be urgently seized. The petitioner has to make out a case for grant of interim measures of protection. Considering the facts and circumstances of the case, the ld. trial court has held that the necessary ingredients for the grant of ex parte re-possession/injunction are not made out. The trial court has exercised its discretion in refusing to appoint ex parte receiver. There is nothing on record to show that discretion has been exercised arbitrarily. No illegality is seen in the impugned order which calls for interference of this Court under Article 227 of the Constitution of India. 7. Considering the facts and circumstances of the case, the petitioner is at liberty to apply to the ld. trial court for preponing the date of hearing. 8. The petition stands dismissed. 9. No costs. CM No.4869/2013 (for appointment of receiver) In view of above order, no further orders are required on this application. The same stands disposed of as infructuous.