JUDGMENT : VALMIKI J. MEHTA, J. FAO No. 357/2016 and C.M. Appeal No. 205/2017 (for condonation of delay of 270/712 days in filing the appeal) 1. This first appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act) is filed by the borrower impugning the order dated 30.5.2013 passed under Section 9 of the Act. 2. By the impugned order a Receiver has been appointed with respect to vehicle Mahindra Champion and which was purchased by the appellant as per the loan given by the respondent. The impugned order reads as under:- “30.05.2013 Present: Counsel for petitioner. Present petition has been filed by the petitioner under Section 9 of the Arbitration and Conciliation Act seeking interim relief for appointment of Receiver. Petitioner is a company incorporated under the Companies Act, which is engaged in the business of rendering financial/credit facility in the form of loan. Respondent applied for loan for the purpose of purchasing vehicle make MAHINDRA CHAMPION bearing Engine no. A0J0382461 and chasis no. A5J14899. The loan of Rs. 305795/- was acceded to the respondent vide written Loan um Hypothecation cum Guarantee Agreement bearing contract no. 1354624 and the same was agreed to be repaid by the respondent in 35 equated monthly installments of Rs. 8737/- each. The respondent has paid only 24 installments and 7 installments are unpaid. As the date respondent is unable to pay a sum of Rs. 112922/- to the petitioner. As the respondent failed to repay the loan amount and interest thereon despite numerous demands, petitioner company issued a legal notice dated 06.05.13 calling the respondent to make the payments. However, respondent did not respond the said notice hence this petition. Ld. Counsel for petitioner has pointed out as per the information, the respondents are intending to dispose off/sell/transfer the said vehicle and hence, petitioner has prayed that a Receiver be appointed to repossess the vehicle. Prima-facie, a case for grant of an order for interim custody of the vehicle, so as to secure the amount due and payable to the petitioner by the respondents appear to be made out. Delaying or postponing the grant of interim protection to which the petitioner appears entitled to is likely to defeat the object of filing the petition. In view of the same Sh. Delaying or postponing the grant of interim protection to which the petitioner appears entitled to is likely to defeat the object of filing the petition. In view of the same Sh. BAHADUR SINGH, authorized representative officer of the petitioner company is appointed as a receiver in this case to take into his custody the vehicle/machine make MAHINDRA CHAMPION bearing Engine no. A0J0382461 and chassis no. A5J14899 from the respondent, his agents or any other person found possessing the vehicle. Copy of identity card of representative of the petitioner showing that he is working with the petitioner company has already been filed. Following directions accordingly issued for the Receiver: An inventory is respect of the attachments in the vehicle shall be made by the receiver and copy of the same be given to the person from whose possession the vehicle is possessed and the petitioner who shall file the same in Court along with the report of the receiver. The condition of vehicle shall be noted and the receiver shall take photograph of the repossessed vehicle from all sides and shall ensure that vehicle is kept in the same condition as it was repossessed. An appropriate receipt shall be give to the person from whose custody the vehicle is taken. The vehicle in question shall not be sold or disposed of or parted with without due permission of the Court. In case the respondent clears all the installments due, the vehicle will not be repossessed and if repossessed the vehicle is to be released within three days of receipt of due installments. An affidavit indicating repossession of vehicle be filed within 3 days of its repossession along with its photographs and inventory. The receiver will inform the respondent the option of resolving the dispute amicably by settlement in Mediation Cell, Tis Hazari Courts, Delhi and will also give a copy of this order to the respondent at the time of repossessing the vehicle. The petitioner shall refer the dispute to arbitration in terms of clause 23 of loan agreement for appointment of an arbitrator within four weeks from today and inform the Court about the same on the next date. The receiver shall take the police aid, if required. With the aforesaid directions, the application stands disposed of accordingly. The petitioner shall refer the dispute to arbitration in terms of clause 23 of loan agreement for appointment of an arbitrator within four weeks from today and inform the Court about the same on the next date. The receiver shall take the police aid, if required. With the aforesaid directions, the application stands disposed of accordingly. Let copy of this order be served upon the respondent within 2 days of passing of this order and the receipt showing such compliance same shall be filed on record by the petitioner alongwith his affidavit one week from today. Ordered accordingly. At request, copy of this order be given dasti to the petitioner. Now to come up on the date fixed for service report of the respondent.” 3. Appellant had challenged the self-same order dated 30.5.2013 in CRP No. 172/2013 titled as Anil Kumar Singh vs. M/s Mahindra and Mahindra Finance Service Pvt. Ltd. By the order dated 25.9.2013 CRP No. 172/2013 was dismissed by a Learned Single Judge of this Court, and this order has been filed by the appellant himself at pages 99-100 of the paper book of this appeal and this order reads as under:- “CM No. 15129/2013 Exemption allowed, subject to all just exceptions. The application is disposed of. C.R.P. 172/2013 and CM No. 15128/2013 The petitioner has assailed the order dated 30th May, 2013 whereby on filing of an application under Section 9 of the Arbitration and Conciliation Act, 1996 the relief was granted to the respondent by appointment of a receiver for taking the custody of the vehicle. While passing the order it is specifically mentioned that at the time of taking the vehicle the receiver shall take photographs of the repossessed vehicle from all sides and shall ensure that the vehicle is kept in the same condition as repossessed. An appropriate receipt shall be given to the person from whose custody of the vehicle is taken. The vehicle in question shall not be sold and disposed of or parted with without the due permission of the court. It was also observed specifically that in case the respondent will clear all the instalments due, the vehicle will not be repossessed and if repossessed, the vehicle shall be released within three days from the date of receipt of instalments due. It was also observed specifically that in case the respondent will clear all the instalments due, the vehicle will not be repossessed and if repossessed, the vehicle shall be released within three days from the date of receipt of instalments due. This Court is of the view that the order passed by the learned trial court is reasonable which cannot be interfered with in the present revision petition filed under Section 115 of the Code of Civil Procedure. There is no merit in the petition. The same is dismissed.” 4. Learned counsel for the appellant says that his appeal lies because earlier appeal was not maintainable under the Code of Civil Procedure, inasmuch as, order passed under Section 9 of the Act is to be challenged under Section 37 of the Act, however in my opinion the heading of a petition is not material and it is seen that the order passed by a Learned Single Judge of this Court on 25.9.2013 is an order on merits holding that the order of the court below dated 30.5.2013 is correct. The CRP No. 172/2013 filed by the appellant was dismissed by observing that there is no merit in the petition. 5. Learned counsel for the appellant also argues that appeal was not heard on 25.9.2013 as some proxy counsel had appeared, however, in my opinion, this argument is totally frivolous and is an endeavor by the appellant to over reach proceedings in the Court of law. 6. It is also noted that this appeal is in fact filed with delay of 712 days, and really though there is no valid ground for condonation of delay, but since the appeal is dismissed on merits the delay is formally condoned. Since, the challenge to the order dated 30.5.2013 already stands dismissed by dismissing on merits CRP No. 172/2013, this appeal is accordingly dismissed with costs of Rs. 20,000/-. Costs shall be paid within six weeks from today.