MANSOOR RAHAMAN Vs. KESHAV FINANCE CORPORATION

JUDGEMENT

(1.) The Court: This is an application for a direction upon the receiver not to sell the vehicle being No. BPH 8479 (old) at present No. WB-37-1590 as per Order dated 25.9.92, on the basis of the agreement between the parties, the petitioner obtained possession of the said vehicle. On an application made under section 41 of the Arbitration Act, 1940, receiver was appointed for taking over possession of the said vehicle and, subsequently, the receiver took possession of the said vehicle on 25th September, 1992. S.K. Hazari, J. as he then was, after hearing of the parties passed inter alia the following order:-

(2.) On 25th September the petitioner made payment of Rs. 20,000/- as per order of this court and the receiver handed over possession of the vehicle to the hirer/applicant. The applicant also paid the amount of Rs. 62,000/- as per particulars set out hereinbelow:- <FRM>JUDGEMENT_387_CALLT2_1997Html1.htm</FRM>

(3.) The contention of the applicant is that only a sum of Rs. 8,000/remains due and payable by the applicant. It is further contention of the applicant that on 19th October, 1994, the respondent (financier) wrongly seized the vehicle and demanded an extra amount of Rs. 90,000/- from the applicant (hirer). The applicant apprehending that there is an attempt to sell the vehicle moved the instant application on 28th October, 1994. It is the contention of the applicant that from the affidavit-in-opposition filed in this proceeding, the applicant came to know that the vehicle, for the first time, has been sold by the receiver. The applicant has specifically contended that the receiver being an officer of the court is not entitled to sell the vehicle without the leave of the court, particularly during the period when the instant application is pending. The contention of the respondent is that the terms of settlement filed by the parties inter alia provided that the receiver would not sell the vehicle in the event of default committed by the applicant in making payment according to the terms of settlement filed by the parties on 5th September, 1990. It has further been contended on behalf of the respondent though the time to make payment of the instalment was extended by an Order dated 25th September, 1992, the said Order, however, clarified that all other terms of the order dated 5th September, 1992 would remain the same. It has also been submitted on behalf of the respondent that in view of the default committed by the applicant, the receiver took possession of the vehicle according to the terms of settlement on 19th October, 1994. On 22nd October 1994 the receiver advertised for sale of the said vehicle in three newspapers. On 25th October, 1994, the receiver sent a telegram to the applicant intimating him that an offer of Rs. 90,000/- had been received in respect of the said vehicle and that unless the receiver-applicant comes with and higher offer, the receiver would sell the vehicle. The contention of the respondent is that although this application was moved on 27/28th October, 1994 before the Vacation Bench, however, no interim Order was passed. The receiver pursuant to the advertisement sold the vehicle on 15th December, 1994. It is the contention of the respondent that in the absence of an interim order, the receiver was justified in selling the vehicle at Rs. 90,000/-. In support of his contention, the learned Advocate for the respondent has relied upon the following decisions: 1) Jang Bahadur Singh v. Baij Nath Tiwari reported in AIR 1969 SC page 30. 2) K.T. Chandy v. Mansa Ram Zade, reported in AIR 1974 SC page 642 Admittedly, in the instant case when the application was pending with regard to direction for sale, the receiver being an Officer of the court is not entitled to dispose of the vehicle. The act and conduct of the receiver in disposing of the vehicle, with such unusual haste cannot be supported in any event. The aforesaid decisions relied upon the learned Advocate for the Respondent (Financer) in my view, cannot have any application to the facts and circumstances of the case.