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2018 DIGILAW 704 (CAL)

Magma Fincorp Limited v. Manjit Prasad

2018-09-20

ASHIS KUMAR CHAKRABORTY

body2018
JUDGMENT : 1. This is an application under section 9 of the Arbitration and Conciliation Act, 1996, as amended by Act 3 of 2016 (in short “the Act of 1996”). 2. From the affidavit-of-service filed on behalf of the petitioner, it appears that the copies of the applications were forwarded upon the respondents. Let the affidavit filed on behalf of the petitioner be kept on record. However, none appears on behalf of the respondents to oppose this application. Accordingly, this application is taken up for hearing in the absence of the respondents. 3. It is the case of the petitioner that in terms of the agreement dated January 17, 2017 (hereinafter referred to as “the said agreement”) the respondent no.1 obtained a loan of Rs.16,85,221/- for acquiring the asset mentioned in Annexure-“A” to the application. The said asset remains hypothecated in favour of the petitioner. The respondent no.2, as the guarantor, is a party to the said agreement, which contains an arbitration clause. 4. 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 45 monthly instalments of variable amounts, but after paying the first 16 instalments and part of the 17th instalment, he failed to pay the balance instalments. In spite of being called upon by the petitioner, 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 terminated the said agreement and filed this application to enforce its rights against the hypothecated asset presently lying at Nawadah, in the state of Bihar. 5. According to the petitioner, as on the date of filing of this application, there remains an amount of Rs.14,63,928/- due and owing by the respondents to the petitioner. 6. Considering 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. 7. Accordingly, Mr. Amiya Kumar Ganguly, Advocate, 9, Old Post Office Street, Kolkata-700 001 is appointed as the Receiver to take the actual possession of the asset, mentioned in Annexure- “A” to the application. 7. Accordingly, Mr. Amiya Kumar Ganguly, Advocate, 9, Old Post Office Street, Kolkata-700 001 is appointed as the Receiver to take the actual possession of the asset, mentioned in Annexure- “A” to the application. After taking possession of the hypothecated asset, the Receiver shall keep the same at a safe place to be provided by the petitioner. 8. The Receiver shall be paid an initial remuneration of 1800 GMs by the petitioner. The petitioner shall also bear the travelling expenses of the Receiver and provide him with a befitting accommodation at the relevant places. Needless to mention that a competent officer of the petitioner shall all along accompany the Receiver. 9. If necessary, the Receiver shall approach the Superintendent of Police, Nawadah, in the state of Bihar for obtaining police assistance to implement this order. If the petitioner deposits the requisite fees with the concerned authorities, the Superintendent of Police shall render necessary police assistance to the Receiver to take actual physical possession of the hypothecated asset from the concerned respondent. 10. Let, this application appear, under the same heading, one week after the Puja Vacation. The Receiver shall file his report on the next date of hearing. 11. Urgent certified website copies of this order, if applied for, be supplied to the petitioner upon compliance with all requisite formalities. 12. The Receiver and all concerned parties, including the Police Authorities shall act on certified website copies of this order.