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Judgment
The Court : 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
1996â€).
From the affidavit-of-service filed on behalf of the petitioner, it appears that the respondents have received copies of the application forwarded to
them. Let the copies of the affidavit of service filed on behalf of the petitioner be kept on record. However, none appears on behalf of he respondents
to oppose this application. Accordingly, this application is taken up for hearing in the absence of the respondents.
It is the case of the petitioner that in terms of the agreement dated June 16, 2015 (hereinafter referred to as “the said agreementâ€) the respondent
no.1 obtained a loan of Rs.27,02,500/- for acquiring the asset mentioned in Annexure-“B†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.
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 56 monthly instalments of variable amounts, but after paying the first 33 instalments and part of the 34th 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 Mothabari, Malda, in the state of West Bengal.
According to the petitioner, as on the date of filing of this application, there remains an amount of Rs.10,00,143/- due and owing by the respondents to
the petitioner. 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.
Accordingly, Ms. Manju Sinha, Advocate, Bar Association Room No. 2 is appointed as the Receiver to take the actual possession of the asset,
mentioned in Annexure “B†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. The Receiver shall be paid an initial remuneration of 2000 GMs by the petitioner and she will be provided with a
befitting accommodation at Malda. The petitioner shall also bear the travelling expenses of the Receiver. Needless to mention that a competent officer
of the petitioner shall all along accompany the Receiver.
If necessary, the Receiver shall approach the Superintendent of Police, Malda, in the state of West Bengal 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. Let, this application
appear, under the same heading, two weeks after Puja Vacation. The Receiver shall file her report on the next date of hearing.
Urgent certified website copies of this order, if applied for, be supplied to the petitioner upon compliance with all requisite formalities. The Receiver
and all concerned parties, including the Police Authorities shall act on certified website copies of this order.