CHOLAMANDALAM DBS FINANCE LTD Vs. SUDHESH KUMAR

JUDGEMENT

(1.) This appeal has been filed against the order of the learned single Judge directing the appellant to hand over to the respondent the vehicle, viz., Chevrolet Tavera BS III bearing Registration No. KL-43-2829 with Engine No. 31F42786 and Chassis No. MA6AB6G 766HJ42343.

(2.) The appellant-company and the respondent-borrower entered into a loan agreement in respect of the above vehicle. The agreement provided for the resolution of dispute by arbitration. Article 11 of the agreement provides for re-possession by the company of the Asset of the company, as the vehicle is called, on occurrence of any of the events of default set out in Article 10 of the agreement and if the borrower failed to deliver the Asset, it was open to the company to enter any place where the Asset may be and to remove or take possession of the same.

(3.) The appellant filed Application No. 1282 of 2009 for appointment of an Advocate Commissioner to seize and deliver the aforesaid vehicle. According to them, the respondent was due and payable a total sum of Rs. 5,87,796/- under the agreement. The said amount should be paid in 36 monthly instalments. It is also alleged that there was chronic and wilful default and as on 13.3.2009, a sum of Rs. 2,74,689/- was due towards arrears of instalments. It is stated that they were in the process of initiating arbitration proceedings. But, since they had the right of re-possession and since they feared that the vehicle would be subject to constant depreciation in value, wear and tear, the Court should appoint an Advocate Commissioner to seize and deliver the vehicle. An ex parte order was passed and the vehicle was seized by the learned Advocate Commissioner on 30.6.2009 at Ernakulam.