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2018 DIGILAW 172 (CAL)

SREI EQUIPMENT FINANCE LTD. v. NASIR HUSSAIN

2018-01-25

ASHIS KUMAR CHAKRABORTY

body2018
ORDER : 1. This is an application under Section 9 of the Arbitration & Conciliation Act, 1996 as amended by the Amending Act 3 of 2016. 2. From the affidavit of service filed on behalf of the petitioner, it appears that the copies of this application were served upon both the respondents by way of Speed Post with Acknowledgement Due. However, none appears on behalf of any of the respondents to oppose this application. Let, the affidavit of service be kept with the record. 3. It is the case of the petitioner that in terms of the agreement dated February 22, 2015 (hereinafter referred to as ‘the said agreement’) the respondent no.1 obtained a loan of Rs.21,13,850/- and acquired a Hydraulic Excavator mentioned in paragraph 2 of the application. The said excavator remains hypothecated in favour of the petitioner. The respondent no.2 as the guarantor is a party to the said agreement, which also contains an arbitration clause. 4. Although under the said agreement the respondent no.1 was obliged to repay the amount financed by the petitioner, together with the agreed rate of interest and other charges by way of 46 instalments of Rs.58,730/- each, commencing from May 2015, but after paying the first 23 instalments and part of 24th instalment, he failed to pay the balance instalments. 5. In spite of being called upon, the respondents failed to repay the dues of the petitioner or to make over possession of the hypothecated asset to the petitioner. Therefore, the petitioner has terminated the said agreement and filed this application to enforce its rights against the hypothecated asset, presently lying at Bhawanipatna, in the state of Odisha. 6. According to the petitioner, as on September 5, 2017, there remains an amount of Rs.16,04,023/- due and owing by the respondents to the petitioner. 7. Having considered the materials on record, I find that the petitioner has made out a prima facie case and the balance of convenience also lies in favour of the petitioner for obtaining an order for appointment of a Receiver to take possession of the hypothecated asset. 8. Accordingly, Ms. Mithu Singha Mahapatra, Advocate of Bar Association Room No.16, is appointed as the Receiver with a direction upon her to take actual physical possession of the hypothecated asset. 8. Accordingly, Ms. Mithu Singha Mahapatra, Advocate of Bar Association Room No.16, is appointed as the Receiver with a direction upon her to take actual physical possession of the hypothecated asset. 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. 9. The Receiver shall be paid an initial remuneration of 1600 GMs by the petitioner. The petitioner shall also bear the travelling expenses of the Receiver and shall provide her with a befitting accommodation at the relevant places in the State of Odisha. Needless to mention that a competent officer of the petitioner shall all along accompany the Receiver in the State of Odisha. 10. If necessary, the Receiver shall approach the Superintendent of Police of the concerned District for obtaining police assistance to implement this order. If the petitioner deposits the requisite fees with the concerned authorities, the Superintendent of Police of the concerned district shall render necessary police assistance to the Receiver to take actual physical possession of the hypothecated asset from the concerned respondent. 11. Let this application appear after four weeks from date. 12. The Receiver shall file her report on the next date of hearing. 13. Urgent photostat certified copy of this order, if applied for, be made available to the parties subject to compliance with the requisite formalities. 14. All parties, including the Receiver and the concerned police authorities shall act on copies of the photostat certified copy of this order.