TMI Blog2013 (12) TMI 1659X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2013 and called upon the respondents to pay a sum of ₹ 72,34,403/- outstanding as on 4th December, 2012 with further overdue compensation @ 36 % per annum from 5th December, 2012. There was no response to the said notice of demand. Petitioner invoked arbitration agreement and has appointed an arbitrator. 3. Learned counsel appearing for the petitioner invited my attention to the loan cum termination agreement and also deed of guarantee. Clause 12 of the loan agreement provides for events of default. If the borrower fails to pay the loan installments, interest and all other monies payable or part thereof within the stipulated time whether demanded or not or any other charge or payment required thereunder within 7 days of their becoming dues, it would amount to an event of default. 4. Clause 13 of the loan agreement provides for consequences in the event of default. It is provided that on the occurrence of any of the events specified in clause 12, without any notice to the borrower, the lender shall have right to terminate the loan agreement, recover from the borrower the arrears of moneys due and unpaid on the date of termination and such other future installments for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Stamp Act. (iii) If the document is found to be duly stamped, or if the deficit stamp duty and penalty is paid, either before the Court or before the Collector (as contemplated in Section 35 or 40 of the Stamp Act), and the defect with reference to deficit stamp is cured, the court may treat the document as duly stamped. (iv) Once the document is found to be duly stamped, the court shall proceed to consider whether the document is compulsorily registrable. If the document is found to be not compulsorily registrable, the court can act upon the arbitration agreement, without any impediment. (v) If the document is not registered, but is compulsorily registrable, having regard to Section 16(1)(a) of the Act, the court can de-link the arbitration agreement from the main document, as an agreement independent of the other terms of the document, even if the document itself cannot in any way affect the property or cannot be received as evidence of any transaction affecting such property. The only exception is where the Respondent in the application demonstrates that the arbitration agreement is also void and unenforceable, as pointed out in para 8 above. If the Respondent rais ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etout the details of the default alleged to have been committed by the respondents. It is submitted that no case is made out for appointment of the Court Receiver under Order 40 Rule 1 of the Code of Civil Procedure. The respondents are using the equipments in ordinary course of business and are bound to comply with their obligations to maintain and repair the assets in terms of clause 8 of the said agreement. Learned counsel placed reliance on the judgment of Madras High Court in case of T. Krishnaswamy Chetty vs. C. Thangavelu Chetty and others reported in AIR 1955 Madras 430 and in particular paragraph 13 thereof in support of his submission that unless the petitioner proves that prima facie it has excellent chance of success in arbitration proceedings and unless there is a element of danger, this court shall not appoint Court Receiver. Paragraph (13) of the said judgment reads thus:- 13. The five principles which can he described as the panch sadachar of our Courts exercising equity jurisdiction in appointing receivers are as follows: (1) The appointment of a receiver pending a suit is a matter resting in the discretion of the Court. The discretion is not arbitrary or a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but if the property is exposed to danger and loss and the person in possession has obtained it through, fraud or force the Court will interpose by receiver for the security of the property. It would be different where the property is shown to be 'in medio', that is to say, in the enjoyment of no one, as the Court can hardly do wrong in taking possession: it will then be the common interest of all the parties that the Court should prevent a scramble as no one seems to be in actual lawful enjoyment of the property and no harm can be done to anyone by taking it and preserving it for the benefit of the legitimate who may prove successful. Therefore, even if there is no allegation of waste and mismanagement the fact that the property is more or less 'in medio' is sufficient to vest a Court with jurisdiction to appoint a receiver.-'Nilambar Das v. Mabal Behari', AIR 1927 Pat 220(Z24);--'Alkama Bibi v. Syed Istak Hussain', AIR 1925 Cal 970;--'Mathuria Debya v. Shibdayal Singh', 14 CWN 252(Z26);--'Bhubaneswar Prasad v. Rajeshwar Prasad', AIR 1948 Pat 195(Z27). Otherwise a receiver should not be appointed in supersession of a bone fide posses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... since part of the cause of action has arisen at Mumbai, this court has jurisdiction. It is submitted that loan was sanctioned from Mumbai. 14. In so far as issue of payment of stamp duty on the loan agreement as well as deed of guarantee is concerned, it is not in dispute that both these documents were executed at Goa. Stamp duty payable on both these documents at Goa has been already paid. As and when these documents are brought to the City of Mumbai and the petitioner seeks to place reliance on these documents for being admitted in evidence, difference in payment of the stamp duty would be payable on such documents according to section 18 of the Maharashtra Stamp Act within three months from the date of the document received in this State. Learned counsel appearing for the petitioner submits that so far the said documents is not brought to city. Statement is accepted. The question of payment of any deficit court stamp duty at this stage does not arise. Be that as it may, on perusal of clause (1) of the deed of guarantee and clause 18.2 of the loan agreement, it is clear that it is obligation on the part of the respondents to bear such expenses including stamp duty. This court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in case of SMS Tea (supra) and order passed by Division Bench in case of Lakdawala Developers (supra) would thus not apply to the facts of this case. Learned Single Judge of this court in case of Marine Container (Supra) has held that even if a document is insufficiently stamped, it cannot be brushed aside at the stage of granting interim relief. Deficit if any can be paid by the parties as per provisions of the agreement. 15. In so far as issue of jurisdiction raised by the respondent is concerned, clause 3.2 read with clause 19.1 clearly provides that repayment of the loan installment had to be paid at the corporate office of the petitioner which is admittedly situated at Mumbai. 16. In paragraph (29) of the petition, it is averred by the petitioner that corporate office of the petitioner is situated at Mumbai where the petitioner has sanctioned and disbursed the loan facility to the respondent no. 1. Respondent no. 1 has executed demand promissory note at the registered office of the petitioner at Mumbai. It is stated that respondents had agreed and undertook to repay the loan amount at the corporate office of the petitioner at Mumbai. There is no affidavit in reply cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to appoint the Court Receiver to secure the claim. Arbitration proceedings would take some time and thus petitioner who claims a sum of ₹ 72,34,403/- is required to be protected. Petitioner has good chances of succeeding in the arbitration. Respondents claimed to be in use and occupation of the hypothecated assets without making any payment and thus the said property which is subject matter of the arbitration is required to be protected. The principles laid down by Madras High Court in case of T. Krishnaswamy Chetty (supra) is not in dispute. In my view, petitioner has made out a case for appointment of the Court Receiver. I, accordingly pass following order:- (a) Court Receiver, High Court, Bombay is appointed as a receiver in respect of the equipment described in Ex. F to the petition with direction to the court receiver to appoint respondent as an agent of the Court Receiver on usual terms and conditions, on furnishing security and on payment of royalty. (b) In the event, the respondent refuses to act as an agent of the Court Receiver within two weeks from the date of such offer, Court Receiver shall take forcible possession of the equipments and would submit a repo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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