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M/S Icici Bank Limited v. Sheo Pujan Singh - FIRST APPEAL FROM ORDER No. - 2840 of 2007 [2007] RD-AH 16678 (12 October 2007)

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Court No. 10

FAFO No. 2840 of 2007.

M/s ICCIBank.....................................Appellant


Sheo Pujan Singh.............................Respondent


Hon. Yatindra Singh, J.

Hon. Vijay Kumar Verma, J.

1. The Civil Judge (Senior Division), Allahabad vide impugned order dated 12.09.2007 passed in O.S. No. 892 of 2007 has declined to appoint receiver ex-parte to take over possession of hypothecated vehicle namely Scorpio/TC bearing Registration No. U.P. 40AL/0620 without hearing the defendant-respondent on the application under Order 40 Rule 1 CPC and issued notice to him. Hence this appeal.

2. Heard learned counsel for the appellant. The learned counsel submits that:-

The plaintiff appellant (the bank) on the request of defendant-respondent had financed loan of Rs..5,50,000/- (Five lac Fifty thousand only) to him on executing Agreement and other documents on 25.10.2006 for purchasing vehicle.

The defendant-respondent made default in payment of instalments and a sum of Rs. 6,57,338.71 (Rupees Six lac Fifty Seven thousand Three hundred Thirty Eight and paisa Seventy one only) was due on him at the time of institution of suit.

The plaintiff-appellant sent legal notice on 5th April 2007 by registered post to the defendant-respondent to pay the outstanding amount of loan and interest etc. Despite receipt of notice, the defendant has neither sent any reply nor

made any effort to repay the outstanding amount

and to hand over peaceful possession of vehicle.

The plaintiff-appellant has strong apprehension that the defendant-respondent might sell away the hypothecated vehicle, which would cause an irreparable loss/injury to the plaintiff.

Clause 48 of the agreement empowers the appellant-bank to take over possession of the hypothecated vehicle and adjust the sale proceeds in outstanding amount of loan and to recover the balance amount from the defendant.

The appellant-bank in pursuance of the guide lines laid down by Hon'ble Supreme Court in the case of Manager I.C.I.CI Bank Ltd. vs. Prakash Kaur & others 2007 (3) Alld. Daily Judgements 211 has resorted to the procedure recognized by law to take possession of the vehicle and instituted suit in the court below for this purpose.

The appellant-bank has good case to get the receiver appointed exparte to take over possession of the vehicle, but the court below without assigning any sound reason has declined to appoint the receiver. Hence interference in the impugned order is essential and receiver should be appointed exparte by this Court.

3. The Delhi High Court in FAO (O.S.)NO. 117 of 2002 decided on 13.04.2002, F.A.O No. 198 of 2006, decided on 11.08.2006, F.A.O.No. 42 of 2007 decided on 25.02.2007 and many other cases in similar circumstances has appointed receiver to take over possession of the vehicle, which were hypothecated with the banks in lieu loan.

4. In the case of S.B.C.M.Appeal No. 3077 of 2007 decided on 21.08.2007 by the Rajasthan High Court, (Jaipur Bench), an application under Order 40 Rule 1 CPC for appointment of receiver to take over the possession of the hypothecated vehicle, which was purchased after taking loan under loan-cum-hypothetical scheme, was moved in the court of Additional District Judge, Court No. 3, Jaipur City, Jaipur in (Suit No. 50 of 2007 (I.C.C.I. Bank Ltd. vs. Vishnu Prasad Sharma). The court below declined to appoint receiver exparte. The High Court of Rajasthan after setting aside the order of court below appointed receiver exparte.

5. Admit.

6. Issue notice to the respondent-defendant by registered post fixing some early date.

7. Having given our thoughtful consideration to the submissions made by learned counsel for the appellant and considering the entire facts and circumstances of the case and agreement between the parties,the impugned order is modified to the extent that Sri Naveen Singh, a representative of the appellant bank is hereby appointed receiver to take over the possession of the vehicle namely Scorpio/TC bearing No. UP 40AL/0620 and to keep the same in his custody. In case, any police aid will be required it will be permissible to the appointed receiver to take police aid in order to enable him to take over possession of the said vehicle. The receiver on obtaining possession of the vehicle will issue appropriate receipt to the person from whose custody the vehicle is taken and will also note down therein the condition of the vehicle and will ensure that the vehicle is kept in the same condition. The vehicle, thereafter, will be dealt with in accordance with the order to be passed by Civil Judge (S.D.) Allahabad, who is seized of this matter.

v.k. updh.



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