(Bus No.Dl-1PB 8497) v. HDFC Bank Limited, A Banking Bank incorporated and registered

1. Whether the Reporters of local papers may be allowed to see the judgment? Yes

2. To be referred to Reporter or not? No 2009:DHC:2733

3. Whether the judgment should be reported in the Digest? No V.B.Gupta, J. By way of the present appeal, appellant has challenged the order dated 27th April, 2009 passed by Addl. District Judge, Delhi, vide which Receiver was appointed with direction to take custody of commercial vehicle, that is, Volvo bus, bearing registration No.DL 1PB 8497.

2. Brief facts of this case are that, respondent financed a sum of Rs.59 lacs to the appellant for purchase of the above mentioned vehicle on execution of certain documents. In pursuance to the loan agreement, appellant agreed to adhere to the repayment schedule and the vehicle was hypothecated with the respondent. As per agreement, loan was to be repaid in 47 instalments of Rs. 1,49,233/- each.

3. As per appellant’s own case, 33 instalments have been paid and 14 instalments are due in the future.

4. In view of the default committed by the appellant, respondent moved a petition before the trial court for appointment of the Receiver and vide impugned order, trial court appointed a Receiver directing him to take back the bus into custody and accordingly, he took the bus into custody. Aggrieved with that order, present appeal has been filed.

5. It has been contended by learned counsel for the appellant that the impugned order has been passed without issuance of any prior show cause notice to the appellant and without calling for any explanation in response to the petition filed by respondent under Section 9 of the Arbitration and Conciliation Act. There is clearly a violation of principles of natural justice and violation of Article 14 of the Constitution of India. Appellant has already paid 33 instalments and the balance instalments, he is ready and willing to pay and as such there was no question of seizure of the vehicle and this seizure is totally illegal.

6. It is an admitted fact that, appellant has taken loan for purchase of commercial vehicle and amount was to be repaid by him in instalments and has paid till date only 33 instalments, and also committed default in payment of various instalments. The last instalment has been paid by the appellant on 8th May, 2009 which is apparent from the additional affidavit filed by the appellant. There is nothing on record to show that after 8th May, 2009, appellant has paid any instalment.

7. The main grievance of the appellant is that impugned order was passed at his back without giving him any opportunity. It is pertinent to point out that as per impugned order, the matter was adjourned to 1st June, 2009 for the service of present appellant. In the appeal, appellant deliberately did not mention as to what happened on 1st June, 2009, before the trial court nor did he file copy of the proceedings dated 1st June,

2009.

8. It was only when appellant was directed to file additional affidavit, on 13th July, 2009 he reproduced the proceedings of the trial court for 1st June, 2009 which read as under; “Present:- None for the petitioner. Shri Deepak Bhalla, husband of the respondent is present. He states that my wife Smt. Monika Bhalla is out of Delhi and as such could not come to this Court today. He assures that his wife would pay all the defaulted installments to the Petitioner bank within period of two months. Put up for appearance of respondent and further proceeding 20.7.2009.”

9. The husband of the appellant had appeared before the trial court on 1st June, 2009 and gave an assurance that appellant (his wife), would pay all the defaulted installments to the respondent bank, within a period of two months. Accordingly, trial court adjourned the matter to 20th July, 2009. On the one hand, husband of the appellant gave assurance before the trial court that his wife (appellant) would pay all the defaulted installments to the respondent-bank within a period of two months, while on the other hand, appellant without waiting for that period of two months to expire, has filed the present appeal.

10. In view of the assurance given by the appellant before the trial court that she would pay the defaulted installments within period of two months, the present appeal is not maintainable and is premature. The appeal as well as the application for stay are dismissed with observations that if appellant comply with the assurance given to the trial court on 1st June, 2009 by paying all the defaulted installments, within the prescribed period, the trial court may consider the plea of the appellant for release of bus seized by Receiver, in accordance with law.

11. Copy of this order be sent to the trial court. July 16, 2009 V.B.GUPTA, J. Bisht