BASUDEB CHAKRABORTY Vs. PREMNATH RAMESH KUMAR

JUDGEMENT

(1.) This revision application has a long chequered history. The petitioner No.1 purchased a Hindustan Tractor of 2001 model bearing Chassis No. 5001017408 with complete accessories by taking loan from the opposite party No.1, financier, under a higher purchase agreement. The said loan was repayable in 24 equal monthly installments. The petitioner No.2 who is the mother of the petitioner No.1 stood as a guarantor for the said loan transaction and in fact, the title deeds relating to immovable property belonging to petitioner No.2 worth Rs. 12 lacs was kept in the custody of the financier by security for repayment of the said loan. The petitioner No.1 paid 16 monthly installments regularly and thereafter committed default in payment of the subsequent installments. Under such circumstances, the opposite party No.1, namely, the financier, filed an application under Section 9 of the Arbitration and Conciliation Act of 1996 being Misc. Case No. 2914 of 2006 before the Learned Seventh Judge, City Civil Court at Kolkata. An ad interim order was passed in the said proceeding on 21st September, 2006 whereby Smt. Rina Banerjee, Advocate, was appointed as a receiver for the purpose of taking over possession of the said vehicle. The receiver was authorised to take all possible steps including the appointment of an agent and also to take necessary police help for taking over the possession of the said vehicle. The receiver was also directed to submit a report on the next adjourned date. It was also provided in the said order that so long as the vehicle would remain in the custody of the receiver or his authorised agent, the receiver would remain responsible for all loss and damage, if any, caused to the vehicle. In terms of the said order, the receiver appointed one Prasanta Sarkar as her agent by power of attorney executed by the receiver on 21st September, 2006.

(2.) Subsequently, the possession of the said tractor was taken over by the receivers agent sometime in February 2007. Immediately thereafter the petitioner filed an application before the Leaned Trial Judge for vacating the said ad interim order by which receiver was appointed and for return of the said vehicle to the petitioner.

(3.) The Learned Trial Judge was pleased to allow the petitioners such prayer on 2nd August, 2007 vide order No. 11. The receiver was directed to release the vehicle in question to the petitioner herein without any loss and damage with a further rider that after release of the said vehicle, the receiver so appointed by the Court will be discharged from her duties. The Misc. Case under Section 9 of the said Act was dismissed on contest with cost of Rs.500/- to be paid by the financier to the opposite party therein. While passing the said order the Learned Trial Judge held that the opposite party, the financier, is guilty of suppression of material facts as it was not disclosed in his application under Section 9 of the said Act that the petitioner No.2 stood as a guarantor for repayment of the said loan and the title deeds relating to immovable property belonging to the petitioner No.2 worth Rs.12 lacs, were retained by the financier by way of security for repayment of the said loan. Thus, the Learned Trial Judge was of the view that since the defaulted amount is a negligible amount and further since there was sufficient security for realization of the said defaulted amount out of the security as mentioned above, receiver ought not to have been appointed for taking over possession of the said vehicle in such a proceeding.