JUDGMENT By this petition filed under section 9 of the Arbitration and Conciliation Act, 1996 the petitioner seeks appointment of court receiver or some other fit and proper person as receiver of the equipments described in the schedule at Ex.W with all powers under Order 40 Rule 1 including power to take forcible physical possession and to sell the same and for various other reliefs. Some of the relevant facts for the purpose of deciding this petition are as under :- 2. On 29th February, 2012, the respondent no.1 entered into a Master Rental Agreement with Connect Residuary Private Limited, formerly known as Connect Financial Services India Private Limited for the purpose of renting equipments on the terms and conditions recorded therein. On 28th March, 2012 the respondent no.1 executed the Rental Schedule No. Nil–01 detailing the equipments to be rented out to the respondent no.1 by the said M/s.Connect Residuary Private Limited and undertook to pay the applicable rental and other amounts in terms of the said agreement dated 29th February, 2012 to the said M/s.Connect Residuary Private Limited. 3. It is case of the petitioner that on 22nd March, 2012, relying upon the representations of M/s.Connect Residuary Private Limited and at the request of respondent no.1 the petitioner issued a sanction letter thereby agreed to purchase the lease receivables for an amount not exceeding Rs.1,75,00,000/- and agreed to purchase all the receivables payable under the Rental Schedule No. Nil-01 for an amount of Rs.1,74,00,000/. On 29th March, 2012 the petitioner entered into an agreement i.e. 'Sale of Receivables Agreement' by which all present and future legal, equitable and beneficial right, title and interest of M/s.Connect Residuary Private Limited under the rental agreement the rental schedule came to be transferred and assigned to the petitioner. M/s.Connect Residuary Private Limited issued a sale notice in respect of the receivables under the rental agreement and the said 'Sale of Receivables Agreement'. 4. On 28th March, 2012 vide a notice of assignment Ms. Connect Residuary Private Limited informed the respondent no.1 of the sale of the receivables in favour of the petitioner and requested the respondent no.1 to make payment of the receivables to the petitioner without any deductions. On 29th March, 2012 the petitioner paid the purchase consideration of Rs.1,74,00,000/- to M/s. Connect Residuary Private Limited in terms of the sanction letter and the 'Sale of Receivables Agreement'. 5. On 29th March, 2012 the petitioner paid the purchase consideration of Rs.1,74,00,000/- to M/s. Connect Residuary Private Limited in terms of the sanction letter and the 'Sale of Receivables Agreement'. 5. On 29th March, 2012 M/s. Connect Residuary Private Limited also gave an undertaking in respect of payments and amounts withheld/deducted by the respondent no.1 from the amount of rent receivables payable under the rental agreement to ensure that the petitioner receives the gross amount of the rent receivables without any impact of taxes and statutory dues. On 30th March, 2012 the said M/s. Connect Residuary Private Limited addressed a letter to the petitioner confirming its ownership of the equipments. 6. On 28th March, 2013 the respondent no.1 intimated M/s. Connect Residuary Private Limited that all the equipment assets covered under the rental agreement read with the rental schedule were fully ensured of the petitioner as the 'Loss Payee'. On 29th March, 2012 by and under a deed of Hypothecation M/s.Connect Residuary Private Limited hypothecated the said equipments relating to the rental schedule in favour of the petitioner for securing all payments including all amount due by way of rental payments by way of first ranking exclusive charge on the said equipments. The said M/s. Connect Residuary Private Limited also executed an irrevocable power of attorney in favour of the petitioner. 7. On 28th March, 2012 the respondent nos. 2 and 3 executed personal guarantee in favour of the petitioner guaranteeing in their personal and individual capacity the due repayment of all rentals and other amounts due and payable by the respondent no.1 and also furnished a notarized affidavit each setting out the details of their assets as on 28th march, 2012. On 9th May, 2013, the respondent requested M/s. Connect Residuary Private Limited for the deferment of repayment in view of the respondent no.1 being in financial difficulty and suggested that a meeting could be fixed with the petitioner to find an amicable solution. A copy of the said letter was also sent to the petitioner by the respondent no.1. 8. On 9th May, 2013, the respondent requested M/s. Connect Residuary Private Limited for the deferment of repayment in view of the respondent no.1 being in financial difficulty and suggested that a meeting could be fixed with the petitioner to find an amicable solution. A copy of the said letter was also sent to the petitioner by the respondent no.1. 8. By letter dated 1st July, 2013 the petitioner through their advocates issued a notice to the respondents calling upon them jointly and/or severally to repay to the petitioner a total sum of Rs1,39,68,544/- due as on 24th June, 2013 under the said two agreements with further interest thereon at the rate of 4% per annum over and above the agreed rent of interest from 25th June, 2013 till payment within 10 days from the date of the said notice. 9. By letter dated 12th July, 2013 the respondent no.1 referred to their earlier letter dated 9th May 2013 expressing their difficulty in view of the financial crunch being faced by the company and requested the petitioner as well as M/s.Connect Residuary Private Limited to co-operate with them in dealing with the financial difficulty. In the said letter it is stated that the respondent no.1 had never refused to make payment and had always tried to adhere to the schedule as scrupulously as possible. It is also stated that the respondent no.1 was in touch with the authorised representative of the petitioner for rescheduling the lease rentals and the efforts were being made to mutually resolve the issue for mutual benefits of the parties. Respondent no.1 requested the petitioner to keep the notice of demand dated 1st July 2013 in abeyance to enable it go ahead with the discussion for rescheduling the repayment under Schedule No. Nil-01 of the Master Rental Agreement. 10. Vide their advocates notice dated 8th August, 2013 to the respondents the petitioner called upon the respondents to return the equipments at a place that would be specified by the petitioner, to pay to the petitioner an outstanding aggregate amount of Rs.1,60,71,239/- due as on 24th July, 2013 with further interest thereon. 10. Vide their advocates notice dated 8th August, 2013 to the respondents the petitioner called upon the respondents to return the equipments at a place that would be specified by the petitioner, to pay to the petitioner an outstanding aggregate amount of Rs.1,60,71,239/- due as on 24th July, 2013 with further interest thereon. It was made clear that if the respondents failed to comply with the said requisition, the said notice shall be treated as notice invoking arbitration under clause 23.2 of the rental agreement against the respondent no.1 company and under clause 24 of the personal guarantee against respondent no.2 And 3. There was no response to the said notice. 11. According to the petitioner, as on 24th July, 2013 the respondents are liable to pay the sum of Rs.1,60,71,239/- with further interest thereon w,.e.f. 25th July, 2013 till payment. In Ex.W the petitioner has furnished the details of the equipments which are subject mater of this petition. 12. By an ad-interim order dated 21st August, 2013 this court directed the respondents not to transfer or create third party rights in their hypothecated equipments and directed to disclose on oath the assets/properties owned by each of them. 13. On 16th April, 2014 the petitioner filed an additional affidavit alleging that some of the equipments had not been found at the designated location. The respondents however made a statement before this court that the equipments which are subject matter of the hypothecation agreement between the parties have been possessed by respondent no.1 till date and are lying at different locations and undertook to disclose the location of those equipments by the next date. The respondents however though filed affidavit on 14th June, 2014 did not disclose the details of the equipments and the exact locations. This court by an order dated 18th June, 2014 directed the respondents to file details of each of the equipments and exact location with full address within one week from the date of the said order. 14. Mr.Kapadia, learned counsel appearing for the petitioner invited my attention to the various provisions of the agreements referred to aforesaid, correspondence exchanged between the parties and also the affidavits filed by the respondents. 14. Mr.Kapadia, learned counsel appearing for the petitioner invited my attention to the various provisions of the agreements referred to aforesaid, correspondence exchanged between the parties and also the affidavits filed by the respondents. It is submitted that the respondent no.1 has been using the equipments purchased out of the monies paid by the petitioner to M/s.Connect Residuary Private Limited and failed and neglected to pay the rentals and other amounts payable to the petitioner. It is submitted that the financial condition of the respondents is such that the respondent would not be able to repay the dues of the petitioner. It is submitted that the equipments of the petitioner are lying and situated at different places as admitted by the respondents in their affidavit in reply. 15. Learned counsel invited my attention that in the affidavit of disclosure filed by the respondents it is case of the respondents that the respondents do not have any immoveable properties except one property described in affidavit dated 7th February, 2014 in para 4(a) and the said property is also alleged to have been encumbered in favour of State Bank of India. It is submitted that the petitioner has good chances of succeeding in arbitration proceedings and if this court does not appoint court receiver and protect the securities of the petitioner, even if petitioner succeeds in arbitration proceedings, it would not be able to recover any amount from the respondents. 16. Learned counsel appearing for the respondents on the other hand raised a preliminary objection about the territorial jurisdiction of this court to entertain this petition under section 9 on the ground that the respondents are carrying on business at New Delhi. The entire cause of action had arisen at New Delhi. 17. It is submitted by the learned counsel that this petition has been filed by the petitioner on the basis of “Sale of receivables agreement” between M/s. Connect Residuary Private Limited and the petitioner on 29th March, 2012 to which the respondents are neither the parties nor the said M/s. Connect Residuary Private Limited had ever intimated the respondents about the said agreement dated 29th March, 2012 entered into between the petitioner and the said M/s. Connect Residuary Private Limited. 18. 18. Learned counsel submits that though the respondents vide their reply dated 12th July, 2013 had requested the petitioner for rescheduling the lease rentals and to keep the said notice in abeyance, instead of considering the difficulties of the respondents, the petitioner through their advocates reply dated 8th august, 2013 reiterated their demand and issued notice invoking arbitration clause. 19. Learned counsel submits that in addition to this petition filed under section 9 the petitioner also filed a company petition against the respondent no.1 (595 of 2013) in the Delhi High Court inter alia praying for winding up of the respondent no. 1 company. My attention is invited to order dated 13th March, 2013 passed by Delhi High Court. In the said order, Delhi High Court recorded the statement made by respondent no. 1 that although certain sums would be indisputably owed to the petitioner, the respondent was not in a position to discharge its debts for want of liquidity and sought some time so that the respondent may be in a position to repay its debts. Delhi High Court in the said order considered it appropriate to give a last opportunity to the respondents to file a concrete proposal indicating the manner in which the dues of the petitioner would be discharged. The directors of the first respondent have been directed to fie an undertaking by way of an affidavit indicating the manner in which the dues of the petitioner would be discharged within two weeks from the date of the said order. Delhi High Court also recorded that it was agreed that in the event, an amicable settlement was not concluded, an order admitting the winding up and appointment of the provisional liquidator will automatically follow. The matter was adjourned to 21st April, 2014. On 21st April, 2014 the matter was adjourned to 5th May 2014 at the request of the respondent no. 1 company. 20. It is not in dispute that the respondent no.1 company has not settled the dispute with the petitioner nor has given any concrete proposal though directed by Delhi High Court granting an indulgence in the matter. Learned counsel submits that in view of the pendency of the company petition, against the respondent no. 1 company. 20. It is not in dispute that the respondent no.1 company has not settled the dispute with the petitioner nor has given any concrete proposal though directed by Delhi High Court granting an indulgence in the matter. Learned counsel submits that in view of the pendency of the company petition, against the respondent no. 1 company, this court shall not entertain this petition under section 9 of the Arbitration and Conciliation Act, 1996 in view of the petitioner having adopted two proceedings for the same relief based on the same cause of action. Learned counsel for the respondents then submits that the present arbitration petition is not filed by M/s. Connect Residuary Private Limited but by the present petitioner which is not maintainable. It is submitted that merely because the venue of the arbitration is mentioned as Mumbai, under clause 23.2 this court will not have jurisdiction solely on the basis of such clause. The said clause does not provide that Mumbai courts only will have jurisdiction. 21. It is submitted that the agreement entered into between M/s. Connect Residuary Private Limited and respondent no. 1 does not provide for any assignment of the said agreement and no previous consent of the respondents had been obtained by M/s. Connect Residuary Private Limited before assignment of the agreement in favour of petitioner. It is submitted that the petitioner has not produced any deed of assignment in their favour on record of this proceedings. Learned counsel submits that there is no dispute that the respondents have to pay various amounts to the petitioner. The petitioner however has not responded to the request of the respondents for rescheduling the installments which request was made by the respondents within thirty days from the date of receipt of notice of demand under clause 23.2 of the agreement. 22. In rejoinder Mr. Kapadia learned counsel appearing for the petitioner submits that under clause 25.1 of the agreement entered into between the Connect Residuary Private Limited and respondent no. 1, the said M/s. Connect Residuary Private Limited has been permitted to sell or assign either absolutely or by way of security all or any of their rights and/or obligations under the said agreement and/or the equipments to any other person and upon such assignment the respondent no. 1, the said M/s. Connect Residuary Private Limited has been permitted to sell or assign either absolutely or by way of security all or any of their rights and/or obligations under the said agreement and/or the equipments to any other person and upon such assignment the respondent no. 1 has acknowledged that the said M/s. Connect Residuary Private Limited shall be entitled to transfer all rental related information to such bank and the respondent no.1 will recognize the bank as the new owner of the equipment and would hold the equipment on behalf of the bank subject to the terms and conditions of the said agreement. It is submitted that though there is prohibition against respondent no. 1 from assigning any of their obligations or rights to a third party, such transfer or assignment by the said M/s. Connect Residuary Private Limited was permissible under clause 25.1 of the said agreement. 23. In so far as issue of jurisdiction raised by the respondent is concerned, my attention is invited to clause 23.2 of the agreement dated 29th February, 2012 between M/s. Connect Residuary Private Limited and respondent no.1 which provides for an arbitration agreement. It is provided in the said clause that the venue of the arbitration shall be Mumbai. Learned counsel placed reliance on sanction letter dated 22nd March, 2012 addressed by the petitioner to the said M/s. Connect Residuary Private Limited thereby granting sanction to purchase the lease receivables of an amount not exceeding Rs.1,75,00,000/- from the said M/s. Connect Residuary Private Limited payable to them by respondent no.1 under the Master Rental Agreement. Clause 5.3 of the agreement entered into between the petitioner and the said M/s. Connect Residuary Private Limited is relied upon which provides for remedies of the petitioner on the occurrence of the default under the said agreement. Clause 8.1 which provides for consequences of default is relied upon. 24. Learned counsel placed reliance on the letter dated 28th March, 2012 issued by M/s. Connect Residuary Private Limited to respondent no. 1 informing about the assignment of the agreement in favour of the petitioner and instructing the respondent no. 1 to make all payments including but not limited to rent and taxes as mentioned in the rental schedule no. NIL-01 dated 28th March, 2012 as required to be paid under the rental agreement entered into between them to the petitioner. 1 informing about the assignment of the agreement in favour of the petitioner and instructing the respondent no. 1 to make all payments including but not limited to rent and taxes as mentioned in the rental schedule no. NIL-01 dated 28th March, 2012 as required to be paid under the rental agreement entered into between them to the petitioner. It is submitted that respondent no. 1 has made an endorsement at the bottom of the said letter thereby has taken note of the said notice of assignment and agreed and undertook to comply with the same strictly. Learned counsel submits that in furtherance of the said notice of assignment, the respondent no.2 and 3 executed two separate deeds of guarantee in favour of the petitioner on 28th March, 2012 at Mumbai. Clause 24 of the said deed of guarantee provides for arbitration agreement and the dispute is subject to exclusive jurisdiction of courts in Mumbai. It is submitted that the respondent no. 1 also started paying installment of rental to the petitioner and has acted upon the deed of assignment in favour of the petitioner. The respondents also disclosed their assets to the petitioner by executing a writing which is at Exh. P to the petition on 28th March, 2012. Learned counsel submits that this court has thus jurisdiction to entertain this petition since the Master Rental Agreement dated 29th February, 2012 which was executed between M/s. Connect Residuary Private Limited and respondent no. 1 was executed at Mumbai. Sale of receivables agreement between the petitioner and the said M/s. Connect Residuary Private Limited was executed at Mumbai. The respondents have made payment of some of the outstanding rentals to the petitioner at Mumbai. 25. Learned counsel submits that the respondents thus cannot now raise an issue that there is no privity of contract between the petitioner and the respondents and that this petition could be filed only by M/s. Connect Residuary Private Limited and not by the petitioner. 26. In so far as pendency of company petition is concerned, learned counsel submits that the petitioner is entitled to adopt proceedings for winding up as well as arbitration proceedings by invoking arbitration agreement. 26. In so far as pendency of company petition is concerned, learned counsel submits that the petitioner is entitled to adopt proceedings for winding up as well as arbitration proceedings by invoking arbitration agreement. It is submitted that though the respondents obtained adjournment from Delhi High Court for giving proposal for settlement by expressing financial difficulty, in last four months no payment is released by the respondents to the petitioner nor any concrete proposal is made. It is submitted that the respondents have not disputed the deed of assignment in favour of the petitioner by the said M/s. Connect Residuary Private Limited. It is submitted that the question of rescheduling of the installments did not arise. Learned counsel prays for appointment of court receiver in respect of the equipments which are in possession of respondent no.1 and other parties at different locations. REASONS AND CONCLUSION :- 27. I will first decide whether this court has jurisdiction to entertain this petition filed under section 9 of the Arbitration and Conciliation Act, 1996. It is not in dispute that the respondents are carrying on business at New Delhi and part of the cause of action has arisen at New Delhi. It is also not in dispute that the agreement between M/s.Connect Residuary Private Limited and the respondent no.1 which records an arbitration agreement provides that the venue of the arbitration shall be at Mumbai. The said agreement was executed at Mumbai. Under the agreement entered into M/s. Connect Residuary Private Limited and respondent no.1, the said M/s. Connect Residuary Private Limited has been permitted to transfer or assign the rights and obligations to a third party under clause 25.1 of the said agreement. The said M/s. Connect Residuary Private Limited had informed the respondent no.1 about such assignment. The respondent no.1 has accepted such assignment and agreed to pay all the amounts due and payable under the said agreement between M/s.Connect Residuary Private Limited and respondent no.1 to the petitioner herein. The respondent nos.2 and 3 thereafter executed personal guarantee in favour of the petitioner. Respondents made payment of rent for some period to the petitioner. The respondent no.1 has accepted such assignment and agreed to pay all the amounts due and payable under the said agreement between M/s.Connect Residuary Private Limited and respondent no.1 to the petitioner herein. The respondent nos.2 and 3 thereafter executed personal guarantee in favour of the petitioner. Respondents made payment of rent for some period to the petitioner. In my view since the petitioner had stepped into the shoes of said M/s.Connect Residuary Private Limited and the said agreement between the said M/s. Connect Residuary Private Limited and the respondent no.1 stood assigned in favour of the petitioner, all the rights and obligations of the said M/s. Connect Residuary Private Limited including right to invoke arbitration agreement stood assigned in favour of the petitioner. In my view this court thus has jurisdiction to entertain and dispose of this petition. 28. In my view there is no substance in the submissions made by the learned counsel for the respondent that the arbitration petition could have been filed only by the said M/s. Connect Residuary Private Limited and not by the petitioner or that the said M/s. Connect Residuary Private Limited had never intimated the respondents about the assignment of the agreement in favour of the petitioner for the reasons already recorded aforesaid. 29. In so far as submissions of the learned counsel for the respondent that the petitioner already having filed a company petition against the respondent no1 in the High Court of Delhi arising out of the same transaction and thus this proceedings under section 9 of the arbitration and Conciliation Act, 1996 shall not be entertained is concerned, in my view company petition for winding up of the respondent no1. is not for recovery of the money claim. The petitioner who has to recover the amount is not only entitled to invoke arbitration agreement but can also file winding up proceedings. Be that as it may, though the respondent no.1 agreed to give concrete proposal to the petitioner to pay the dues of the petitioner and agreed to file undertaking in that behalf, respondent no.1 did not take any steps inspite of the order passed by the Delhi High Court and has not settled the claim of the petitioner. Be that as it may, though the respondent no.1 agreed to give concrete proposal to the petitioner to pay the dues of the petitioner and agreed to file undertaking in that behalf, respondent no.1 did not take any steps inspite of the order passed by the Delhi High Court and has not settled the claim of the petitioner. In my view, thus there is no merit in the submissions of the respondents that since winding up petition is already filed by the petitioner, this court shall not entertain this petition under section 9 of the Arbitration and Conciliation Act, 1996. 30. In so far as submissions of the respondents that the agreement entered into between M/s.Connect Residuary Private Limited and the respondent no.1 does not provide for any assignment of the agreement is concerned, a perusal of clause 25.1 of the said agreement clearly indicates that it permits the said M/s. Connect Residuary Private Limited to sell or assign either absolutely or by way of securities all or any of their rights and/or obligations under the said agreement and/or equipments to any other person and upon such assignment, the respondent no.1 has acknowledged that the said M/s.Connect Residuary Private Limited shall be entitled to transfer all rental related information to such bank and the respondent no.1 will recognize the bank as the new owner of the equipments and who would hold the equipments on behalf of the bank subject to the terms and conditions of the said agreement. Under the said agreement there is prohibition against the respondent no.1 from assigning any of obligations or rights to a third party and not against the said M/s.Connect Residuary Private Limited. A perusal of the record clearly indicates that the respondent no.1 has already recognized the petitioner as the new owner of the equipment and has accordingly executed documents and started paying rental to the petitioner. There is thus no merit in this submission of the respondents. The previous consent of the respondent no.1 has been already provided in the said agreement. The respondents have already acted upon the deed of assignment in all respect. 31. There is thus no merit in this submission of the respondents. The previous consent of the respondent no.1 has been already provided in the said agreement. The respondents have already acted upon the deed of assignment in all respect. 31. In so far as submission of the learned counsel appearing for respondents that instead of accepting the request of the respondents to reschedule the payment of rentals, the petitioner has invoked arbitration agreement and has applied for interim measures is concerned, a perusal of record including the order passed by Delhi High Court indicates that respondent no.1 was not in a position to discharge its debts for want of liquidity and sought some time to repay the debts. It is clear that the respondents have neither made any payment nor had given any concrete proposal for settlement and is admittedly in severe financial crunch. All the equipments of the petitioners given on rental to the respondent no.1 are being used by the respondent no.1 or third parties and are situated at different location without payment of any rental to the petitioner. The petitioner has good chances of succeeding in arbitration. According to the petitioner, petitioner has to recover substantial amounts from the respondents. 32. There has been a default in payment of rentals on the part of the respondent no.1. In my view the appointment of the receiver is thus necessary in order to ensure that the equipments are not wasted or alienated thereby defeating the rights of the petitioner. It would be necessary to safeguard the interest of the petitioner by appointing the court receiver as receiver of the equipments. The respondent no.1 has now disclosed the location of such equipments in the affidavit filed before this court. A perusal of the affidavit of disclosure indicates that the respondents do not have any immoveable properties except one property which is also encumbered. The petitioner has thus made out a case for appointment of court receiver. I therefore pass the following order :- (a) The Court Receiver, High Court, Bombay is appointed a receiver in respect of the equipments described in the schedule at Ex.W which are located at various address mentioned in the affidavits filed by the respondents. The petitioner has thus made out a case for appointment of court receiver. I therefore pass the following order :- (a) The Court Receiver, High Court, Bombay is appointed a receiver in respect of the equipments described in the schedule at Ex.W which are located at various address mentioned in the affidavits filed by the respondents. The Court Receiver shall give an option to the respondents or third party found in possession of equipments in writing to act as agent of receiver in respect of such equipments and shall give two weeks time from the date of the receipt of the communication from the Court Receiver to exercise such option on usual terms and conditions and on payment of royalty and on furnishing security. In the event of the respondents or such third party refusing to accept the agency within the time prescribed on the terms decided by the Court Receiver, the court receiver to take forcible possession of the equipments and if necessary with the assistance of the police from the respondents or such third party found in possession. It would be open to the petitioner to apply to the court for further orders including handing over physical possession thereof to the petitioner. (b) Until the Court Receiver takes possession of the equipments, there shall be an interim injunction restraining the respondents from alienating, encumbering, parting with possession or creating any third party rights in respect of the equipments described in Ex.W to the petition. (c) Petitioner is directed to approach the office of the Court Receiver for enforcement of this order within three weeks from today. The Court Receiver as well as the parties to act on the authenticated copy of this order. 33. The arbitration petition is accordingly disposed of. No order as to costs.