ICICI BANK LIMITED Vs. KAPTAN SINGH

JUDGEMENT

(1.) THE appellant herein filed a suit under Order 37 CPC and application under Order 40 Rule 1 CPC before Trial Court on 01.12.2006. The appellant/plaintiff advanced a loan in the sum of Rs. 5,60,000/ - to the defendant/respondent for purchase of a vehicle in respect of which hypothecation -cum -loan -agreement dated 01.05.2004 was executed. It was agreed that the respondent/defendant would pay off the loan in 35 monthly Installments of Rs. 17,803/ - each commencing from 07.06.2004 to 07.03.2007. The appellant herein served legal notice upon the defendant dated 17.11.2006. The defendant did not pay even a single penny towards the above said loan. In the plaint, the plaintiff has averred that the defendant is trying to part with the hypothecated vehicle and is trying to remove the same from the bounds of this city. The plaintiff also moved application under Order 40 Rule 1 CPC for appointment of receiver to take over the possession of the vehicle, namely, Scorpio/DX TC2 Car bearing No. DL -9C G -6822 ex -parte.

(2.) THE Trial Court dismissed the application. It opined that in view of Prahalad Rai Muf v. Sat Narain 2000 RLRN 29, this Court had held that due to delay the matter had become stale and there was no emergency or danger requiring immediate action to deprive defendants of de -facto possession. He also placed reliance on another authority reported in T. Krishnaswamy v. C. Thangavelu : AIR1955Mad430 wherein it was held that 'appointing receiver is in the discretion of the Court and it would be exercised in favor of a person who has a strong prima facie case and there was emergency or danger or loss requiring urgent action and there were adverse and conflicting claims and the conduct of the applicant was free from blame.'

(3.) COUNSEL for the appellant has also drawn my attention towards another order passed by this Court in Citi Bank N.A. v. Bhupender Singh in FAO 198/2006 in Suit No. 73/2006 dated 11.8.2006. In this case, the appellant had paid some of the amount but defaulted in making payment of four Installments. Learned Trial Court declined the prayer for an ex -parte order relying upon a decision of the Supreme Court in R. Manoharan v. Smt. D. Jayakumari and Ors. UJ (SC) 13. The learned Single Judge distinguished the above said authority of the Supreme Court because that had stemmed out of a compromise and learned Single Judge passed an ex -parte order.