IN THE COURT OF THE LEARNED ADDITIONAL DISTRICT JUDGE, FAST TRACK IV
COURT, ALIPORE, SOUTH 24 PARGANAS
Arbitration Execution Case No. 518 of 2023
IN THE MATTER OF:
Arbitration & Conciliation Act, 1996;
And
IN THE MATTER OF:
Section 36 of the said Act read with Order
21 of the Code of Civil Procedure, 1908;
And
IN THE
MATTER OF:
Award dated 09/09/2022
passed by the Learned Sole Arbitrator, Sachin
P. Gorwadkar, TATA MOTORS FINANCE LTD. ~Versus~ ARNAB DAS & Ors.;
And
IN THE MATTER
OF:
TATA MOTORS FINANCE
LTD,
a Company
incorporated under the provisions of the Companies Act, 1956, having its registered office at Building
- A, 2nd
floor, LodhaI- Think Techno Campus off Pokharan
Road 2, Thane (West), 400607 and having its branch office at Rene
Towers, 1842, Rajdanga Main Road, Plot No. AA-1, 6th Floor, Wing-A,
Kolkata -700107 represented by Supriya Sengupta,, authorized
representative of the Company;
...DecreeHolder/Petitioner
-VERSUS-
1. ARNAB DAS, of South
Anand Pally, Purba Putiary, Barasat – 700093.
2. NAMITA DAS, of South
Anand Pally, Purba Putiary, Barasat – 700093.
3. SURAJIT BISWAS, of
radhanagar, Madhya para, Radhanagar, Sonarpur, Kolkata - 700150.
...Judgment
Debtors/Respondents.
The humble petition
on behalf of the Decree Holder/Petitioner most respectfully;
MOST RESPECTFULLY SHEWETH AS UNDER;
1.
Your Petitioner states that the Decree Holder TATA MOTORS FINANCE LTD, a Company
incorporated under the provisions of the Companies
Act, 1956, having its registered office at Building - A, 2nd floor, LodhaI- Think Techno Campus off Pokharan Road 2, Thane
(West), 400607 and having its branch office at Rene Towers, 1842, Rajdanga Main Road, Plot No. AA-1, 6th
Floor, Wing-A,
Kolkata - 700107 represented by Supriya
Sengupta, authorized representative of the Company
authorized representative of the Company and has been duly authorized by
the Company to sign, institute, verify and pursue the captioned
proceedings and she is even otherwise well conversant with the facts of the matter.
2.
Your Petitioner further states that the Judgment
Debtor has entered into Loan cum Hypothecation cum
Guarantee agreement being No. 800012237
dated 22/02/2021 and is residing/ working for gain, at the aforementioned
address.
3.
Your Petitioner further states that the Decree
Holder Company is engaged, inter- alia, in the business
of rendering financial loan facilities, in the form of Loan cum Hypothecation
etc. by entering into Loan cum Hire Purchase
Agreement and providing the loan to its various customers
as per their requirements and proposals.
4.
Your Petitioner further states that the Judgment
Debtor was in need of Commercial Vehicle make LPT1109, having Registration No. WB19H1057 (hereinafter referred to as "the said vehicle") for
their use but since they did not have the required financial solvency to outright
purchase of the said vehicle and that
they were accordingly interested to take loan from the decree holder. The Judgement debtor to duly repay the
loan, advanced by the decree holder.
5.
Your Petitioner further states that for the purpose of the
aforesaid, a Loan –Cum- Hypothecation
cum Guarantee agreement was duly executed by and between
the parties on 22/02/2021,
and the terms and conditions thereof are more fully contained in the said Loan-cum-Hypothecation
cum Guarantee agreement dated 22/02/2021
to which the decree holder craves leave to refer at the time of hearing of this
application, if necessary.
6.
Your Petitioner further states
that the said Loan- Cum- Hypothecation agreement, inter alia, provided that in the event of there being any
disputes or differences between the parties the same shall be referred to Arbitration. The decree holder crave leaves to refer to a copy of the said arbitration agreement at the time of hearing, if
necessary.
7.
Your Petitioner further states that subsequently, inasmuch as disputes and differences arose between the
parties, the same were referred to the Sole Arbitral Tribunal comprising Sachin
P.Gorwadkar.
8.
Your
Petitioner further states that the Judgment Debtors, after repeated notice
failed to comply with the requisitions
contained in the said termination notice. The
Judgment Debtors and/or the respondents failed to make
payment of the said sum due or to make over possession of the said vehicle to the
Decree Holder. However, even after repeated opportunities, the Judgment Debtors
and/or the respondents
failed and neglected to appear before the Learned Arbitral Tribunal and in the
circumstances, the Learned Arbitral Tribunal duly held meetings from time to time, adjudicated the disputes
between the parties and
ultimately passed an award on 09/09/2022, which was
duly communicated to all the contracting parties.
9.
Your petitioner has come to learn that the said
award dated 09/09/2022 has been forwarded
upon the judgment debtors
by the Learned Arbitrator and upon enquiries being made with the office of the Learned Arbitrator, the Learned
Arbitrator has been pleased to give copy of the postal receipts, wherefrom it
appears that the said award has
been forwarded upon the
judgment debtors. However it is pertinent to mention
that the Judgment Debtors have also not taken any step
for making an application to set aside the Arbitral Award under section 34 and more than 120 days has
been expired since the Award dated 09/09/2022, has been made. The time for making such application has also expired.
10.
Your Petitioner further states that in the circumstances, as on 05/05/2022, a sum of Rs. 7,29,732.57p
has become due and payable by the respondents jointly
and severally to the Decree Holder/Petitioner full particulars
whereof are as follows:
PARTICULARS
|
Net Awarded
Amount |
Rs. 5,86,503.15p |
|
Add.
Interest @ 18% per annum |
Rs. 1,36,229.42p |
|
Cost
Awarded by the Learned Arbitrator |
Rs. 7,000/- |
|
TOTAL
DUE |
Rs. 7,36,732.57p |
11.
Your Petitioner further states that the Decree
Holder is not aware of the assets or bank
accounts or properties or means of the Judgment Debtors wherefrom the decretal
debts of the Decree Holder may be recovered and in the absence of specific information regarding the same, it has
become difficult to enforce the said award dated 09/09/2022.
12.
In the circumstances, the
Decree Holder/Petitioner prays that the Judgment Debtors/Respondents be examined as to their assets and or
properties in accordance with Order XXI of the
Code of Civil procedure 1908.
13.
Your
petitioner states and submits that in the circumstances, the Judgment Debtors be examined as to their properties in accordance with Order XXI
of the Code of Civil procedure 1908 and orders be passed a prayed for in Column 10 of
the Tabular Statement.
14.
Your petitioner states and submits that an order of injunction be passed restraining the
judgment debtors/ respondents from selling, alienating, transferring
and/or creating any third party rights in respect of the said vehicle in question along with all its
accessories.
15.
Your petitioner states and submits that a fit and
proper person be appointed as a Receiver and be forthwith directed to take physical possession of the said Commercial Vehicle make
LPT1109, having Registration No. WB19H1057 with all its accessories after making an inventory thereof and Jurisdictional Superintendent of Police under
whose jurisdiction the said vehicle is found be directed to render all
assistance to the Learned Receiver in taking possession of the said vehicle in question.
16.
Your petitioner further states and submits that upon taking
physical possession of the said vehicle the learned Receiver be directed to sell the same by way of public
auction or private treaty and to
handover the sale proceeds to the
decree holder/petitioner to satisfaction
of the awarded amount.
17.
Your petitioner states and submits that the Judgment
Debtors be directed to make and affirm an affidavit stating
the particulars of assets of their
properties from which the dues of the
Decree Holder/Petitioner can be satisfied.
18.
Your petitioner humbly prays that in the event of non-compliance
of the order directing the
Judgment Debtors/Respondents to file
their affidavit of assets,
the Judgment Debtors/Respondents and each one of them be detained in civil prison.
19.
Your petitioner further states
and submits that in the facts and circumstances of the instant case, it is expedient and necessary that in the interest of justice orders be passed as prayed
for in Column 10 of the Tabular Statement.
20.
Unless orders are passed as prayed for in Column 10 of the Tabular Statement, the petitioner will not be able to realize its dues payable to it in accordance with the award dated 09/09/2022
which has now become executable as a decree.
21.
That as per the best knowledge of the Decree Holder the Judgment Debtors
did not file any application for setting aside the
Award passed by the Learned
Arbitrator or prefer any appeal/application against this award.
22.
That considering the above facts and circumstances
the Decree Holder prays before the Learned Court to allow the instant application under Order 21 Rule 11 pertaining
to the present execution application in the instant case otherwise your Petitioner will suffer irreparable loss and
injury which cannot be compensated by monetary value and very right of your
Petitioner will be at stake.
23.
That the Judgment Debtor No. 3 permanently resides in the property situated at SURAJIT BISWAS, of radhanagar, Madhya para,
Radhanagar, Sonarpur, Kolkata – 700150, and the property is situated at and within the jurisdiction
of SONARPUR PS and accordingly this Learned Court has territorial jurisdiction to try
and entertain the present petition.
24.
That the instant petition is
made bonafidefor the end of
justice.
Under this facts and circumstances it is prayed to Your Honour to be kind and gracious enough to
issue:-
A.
A fit and proper person be
appointed as a Receiver and
be forthwith directed to take physical possession of the said Commercial Vehicle make LPT1109, having Registration No. WB19H1057 with all its
accessories after making an inventory thereof and to submit a report before this Learned Court;
B.
The respective Jurisdictional
Superintendent of Police under whose jurisdiction the said vehicle is found be directed to render all assistance
to the Learned Receiver in taking possession of the
said vehicle in question;
C.
Injunction on the respondents
creating any restraining the judgment
debtors / from selling, alienating, transferring and /or third party rights in respect
of the equipment in question being acquiring taking physical possession of the
said Commercial Vehicle make LPT1109, having Registration No. WB19H1057 along with all its accessories;
D. Upon taking equipment being
acquiring Commercial Vehicle make LPT1109, having Registration No. WB19H1057 the learned Receiver be directed to sell the same by
way of public auction or
private treaty and to handover
the sale proceeds to the petitioner in protanto satisfaction of the awarded amount;
E.
The respondents be directed to disclose their assets and or
properties in their name and or title by way of affidavit of
assets which is to be filed by
the respondents in terms of
the Tabular Statement in order to protect the rights of the
petitioner in terms
of the said Award;
F.
The Learned Receiver so appointed
be further directed to take possession of all movable
and immovable assets of the
respondents which may be ascertained after examination of the judgment debtors under Order 21 Rule 41 of the Code of Civil Procedure, which may fall within the jurisdiction of this
Hon'ble Court;
G. An
order of injunction restraining the respondents and each one of them, their men,
servants and agents from restraining
the respondents/ judgment-debtors from
transferring and/or alienating and/or
encumbering and/or creating any third party rights over and in respect of their
assets, both movable and immovable, may be passed after examination of the
judgment-debtors under Order 21 Rule 41 of the
Code of Civil Procedure, 1908,
which may be fall within the jurisdiction of this Hon'ble Court;
H. The Respondents be directed to approach this Hon'ble court
to be examined on oath under order 21 with regards
all there assets and properties and means to satisfy the decree;
I.
Upon the judgment-debtors
being examined under Order 21 Rule 41 of the Code of Civil Procedure, 1908, if
it is ascertained by this Hon'ble Court that the movable
and immovable assets of the judgment-debtors are situated outside the jurisdiction of this
Hon'ble Court, liberty should be given to the Decree
holder to seek transfer of the said
decree to the competent court within the jurisdiction of the said movable and
immovable property of the
judgment- debtors are situated;
J.
To issue orders of Warrant of Arrest
against the respondents in the event
they failed to comply with the orders passed by this Hon'ble Court;
K.
Recovery for a sum of Rs. 7,29,732.57p
as on 05/05/2022, and further interest from
05/05/2022 till realization from the Judgment
Debtors.
L.
Cost of and/or incidental
thereof to be paid by the respondents;
M. Such
further or other order or orders be made and/or direction or directions be given as this
Hon'ble Court may deem fit and proper.
And Your Decree Holder as in duty bound shall ever pray.
I, Supriya
Sengupta,
Son of Chanchal Sengupta, aged
about 45 years, working for gain as Manager
–Corporate Legal & Compliance, at M/s. Tata Motors Finance Limited, having its Office at Wing A,
6th Floor, Rene Tower, Plot AA-1, 1842, Rajdanga Main Road, Kolkata – 700107,
P.S. Kasba, District – South 24 Parganas, do hereby
solemnly affirm and say as
follows:-
1.
I am the authorized officer of
the petitioner above named and as such
am fully acquainted with
the facts and circumstances of the instant case. Authorized
and am competent to make and affirm this affidavit for and on behalf of the Petitioner.
2.
The statements contained in
paragraphs 1 to 22 of the foregoing affidavit are
true to my knowledge and those contained in paragraph
23 are my respectful submissions before this Learned Court.
Prepared in my office Deponent
is known to
& identified by me
Advocate Advocate
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