Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
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% Date of Decision: 28 February, 2017
+ FAO 524/2016
ICICI BANK LTD ..... Appellant
Through: Mr. Punit K. Bhalla, Adv.
versus
SUNIL DUTT ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT (ORAL)
1. Learned counsel for the appellant seeks dispensation of the
service of notice on the respondent on the ground that the impugned
order was passed by the learned Trial Court before service of notice on
the respondent. The Trial Court record has been perused. Considering
that the impugned order was passed before service of notice on the
respondent, the notice to the respondent in this appeal is dispensed
with and the appeal is taken up for hearing.
2. The appellant instituted a suit for recovery of Rs.7,91,540.88/-
against the respondent on the ground that the appellant advanced a
loan of Rs.8,00,000/- to the respondent for purchase of car make I-20/
ACTIVE-S. The loan was repayable in 60 monthly instalments of
Rs.17,335/- each. The respondent executed credit facility application,
deed of hypothecation and irrevocable power of attorney in favour of
the appellant. The respondent defaulted in making the payment of the
monthly instalments and, therefore, the appellant recalled the loan
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vide notice dated 11 May 2016. The appellant instituted a suit for
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recovery on 8 September, 2016 and sought an ex parte order for
appointment of the Receiver along with suit.
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3. Vide order dated 26 September, 2016, the Trial Court held that
substantial cause of action arose out of Delhi as respondent is resident
of Gurgaon, Haryana; credit facility application, deed of
hypothecation and irrevocable power of attorney do not bear the
signature of the Bank officials and disbursement did not take place
within its territorial jurisdiction. The Trial Court also dismissed the
application for appointment of Receiver.
4. Learned counsel for the appellant submits that the loan was
disbursed from the plaintiff’s office at Videocon Tower, Jhandewalan,
New Delhi; loan was repayable at Videocon Tower, Jhandewalan,
New Delhi, credit facility application, deed of hypothecation and
irrevocable power of attorney were executed at Delhi and the same has
been specifically mentioned in the documents. Reliance is placed on
the judgment of this Court in ICICI Bank v. Astha Kumar, (2015)
224 DLT 651 in which this Court set aside the similar order passed by
the learned Trial Court.
5. The Trial Court record has been perused. In para 18 of the
plaint, the appellant has specifically pleaded that the loan was
disbursed from the plaintiff’s office at Videocon Tower, Jhandewalan
Branch, New Delhi and it was repayable at the same address. Para 18
of the plaint is reproduced hereunder:-
“That the loan was disbursed from the office of the
plaintiff situated at Videocon Tower, Jhandewalan,
New Delhi. The loan is repayable at Videocon
Tower, Jhandewalan Branch, New Delhi. The said
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branch is situated under the jurisdiction of police
station Paharganj and as majority of cause of action
has taken place under the territorial jurisdiction of
the Hon’ble Court. Hence this court has territorial
jurisdiction to try and entertain the present suit.”
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6. Deed of hypothecation dated 16 May, 2015 specifically
records the place of execution as Delhi. The original irrevocable
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power of attorney dated 15 May, 2015 also records that the same was
executed in Delhi.
7. In ICICI v. Astha Kumar , (supra) this Court set aside a similar
order passed by the Trial Court holding that Trial Court at the initial
stage is required to accept the veracity of assertions made in the plaint.
This case squarely covered by the principles laid down in ICICI v.
Astha Kumar , (supra).
8. This Court is of the view that the averments made by the
appellant in the plaint and the documents showing the place of
execution within the jurisdiction of the Trial Court were sufficient to
issue notice to the respondent. However, it is clarified that this
judgement would not preclude the Trial Court from considering the
issue of jurisdiction after recording of the evidence.
9. The appeal is allowed and the impugned order is set aside. The
Trial Court shall recommence the proceedings and issue notice to the
respondent.
10. Learned counsel for the appellant submits that the receiver be
appointed in terms of the judgment of this Court in ICICI Bank Ltd.
v. Astha Kumar (supra). The appellant’s prayer is allowed and Mr.
Sanjeev Jain, a representative of the appellant is appointed as the
receiver to take the possession of vehicle I-20/ ACTIVE-S bearing
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registration number HR-26CP-8922.
11. The receiver shall take over the possession of the vehicle from
the respondent at the address(es) given in the loan application. If the
vehicle is not available at the said address(es), the receiver shall be at
liberty to recover the vehicle wherever found. However, the receiver
shall not stop a running vehicle on the road to forcibly take out the
driver to take the possession of the vehicle. The receiver shall also not
make any attempt to block the passage of a car to bring it to a halt to
take its possession.
12. The receiver shall avoid taking the possession of the vehicle if
the vehicle is occupied by a woman who is not accompanied by a male
member or an elderly, infirm or physically/mentally challenged
person. In such cases, the receiver shall take the possession of the
vehicle from the borrower’s residence.
13. The receiver shall be at liberty to take the assistance of the local
police, if required, for taking over possession of the vehicle. The
concerned SHO shall provide assistance to the receiver as and when
requested.
14. The receiver shall also ensure that the repossession of the
vehicle does not result in any breach of peace. In the event of any
breach of peace by the person occupying the vehicle, the receiver shall
not proceed without assistance of police.
15. At the time of taking the custody of the vehicle, the receiver
shall deliver copy of this order to the person from whom the
possession is taken.
16. At the time of taking the custody of the vehicle, the receiver
shall take the photographs of the vehicle from different angles along
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with the person(s) occupying the vehicle as well as the place of taking
over the possession.
17. The receiver shall prepare an inventory of the
articles/accessories found in the vehicle and shall furnish the copy of
the inventory to the person from whom the possession is taken.
18. After taking the possession of the vehicle, the receiver shall
keep the vehicle in safe custody.
19. If the respondent makes payment of the outstanding instalments
as on date of possession, the receiver shall release the vehicle in
question to the respondent on s uperdari, subject to an undertaking by
the respondent to the receiver for regular repayment of future monthly
instalments till the expiry of the tenure and a declaration not to part
with the vehicle or create third party interest in the vehicle until the
entire amount is paid.
20. If the respondent is not in a position to clear the entire
outstanding instalments, the receiver shall give him another
opportunity to pay the outstanding instalments within 30 days of
taking over the possession of the vehicle and in case the respondent
makes the payment of the outstanding instalments within the said
period, the receiver shall release the vehicle to the respondent subject
to the undertaking as aforementioned.
21. If the respondent does not make the payment of the outstanding
amount to the appellant bank within 60 days, the receiver would be
authorised to sell the vehicle in question in a public auction with prior
written notice (to be sent by Speed Post AD) of the date of auction to
the respondent at the address(es) mentioned in the loan agreement or
the address from where the vehicle is taken into possession so that the
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respondent may also be able to participate in the auction to enable the
appellant to fetch maximum amount from the sale of the vehicle. The
receiver shall carry out video recording of the auction proceedings and
shall submit the same before the Trial Court along with his final
report.
22. That the receiver shall submit his first report before the Trial
Court within 10 days of taking the custody of the vehicle along with
the photographs and inventory mentioned above. The final report
shall be submitted before the Trial Court within 10 days of the public
auction along with the proceedings for public auction and video
recording of the public auction.
23. The Trial Court record be returned back forthwith and the
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matter be listed before the Trial Court on 1 May, 2017.
24. Copy of this judgment be given dasti to learned counsels for the
parties under signature of Court Master.
FEBRUARY 28, 2017 J.R. MIDHA, J.
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