JUDGMENT
S. Mukerjee, J.
1. Vide order dated 16.8.2002, respondent was
proceeded ex parte.
2. The averments of the petitioner thus stand
unrebutted in relation to the petition under Section 9 of
the Arbitration and Conciliation Act, 1996 which
averments of petitioner are also duly supported by an
affidavit and documents in relation to the following
aspects which were highlighted in the first order of this
Court dated 31.1.2002, relevant portion of the order
reads as under:
“The Petitioner/company entered into
an agreement with the Respondent/company
and leased out plant and machinery/assests
as described in para 7(e) of the petition.
The respondent failed to pay the
Installments of the lease rental. According
to the terms of the agreement, in the event
of default in payment of the rental the
Petitioner could declare the entire amount
payable under the agreement and agreement
could be terminated. In this case the term
of lease has already expired. The
petitioner served a notice on the
Respondent demanding the outstanding rental
and the equipment. The Respondent did
reply to the notice but sought some time to
arrange for the payment. They claimed that
the company was in a financial crises. In
reply to the notice the Respondent stated
that on account of recession in the steel
industry the operation of the Electric Arc
Furnace was also suspended. Disputes
having arisen between the parties and there
being an arbitration clause in the
agreement, the petitioner invoked the
arbitration clause by their communication
dated 23.1.2002 and appointed Mr. Abhinav
Vashisht an arbitrator, requesting the
Respondent to appoint the second arbitrator
in terms of the agreement.
The petitioner avers that the
machinery is not being properly maintained
by the Respondent and if it is not kept
maintained, it is likely to be damaged. In
any case, the lease period has already
expired. Otherwise also under the
agreement since the Respondent has failed
to pay the lease rental, the petitioner has
a right to take possession of the
equipment. The prayer is to appoint a
Receiver to take the possession of the
equipment and to hand over the same to the
petitioner on superdari.
3. Since by the same order dated 31.1.2002 Mr.
Shellen Kumar Advocate was appointed as a Receiver and he
has actually carried out the work assigned to him, it is
obvious that respondent, through its officials, is very
well aware of the pendency of the proceedings and about
the averments in the petition, as well as the aspects
highlighted in the order dated 31.1.2002, and despite
knowledge has chosen not to contest or rebut the same.
The only inference possible is that the respondent is not
in a position to rebut the averments.
4. The this view of the matter the petitioner is
clearly entitled to the relief claimed in the petition
considering both the un-rebutted averments of the
petitioner as well as the huge outstanding to the tune of
Rs. 41,20,042/-, and also the observations of learned
Single Judge of this Court in the case of Wipro
Finance Ltd. v. Dee Pharma Ltd.; reported in 86(2000)
Delhi Law Times 45 which reads as under :-
“12. The lease equipment belongs to the
petitioner. The respondent without making
the payments due, not only the petitioner
is deprived of their property but a
valuable security would be lost/destroyed
due to its use and by passage of time. In
these circumstances, it is just, proper,
convenient and expedient in the interest of
justice that a Receiver should be appointed
to seize and take possession of the
aforesaid plant and machinery from the
possession of the respondent wherever it is
available.”
5. In view of the above, I find that the case as made
out by the petitioner, warrants the appointment of a
Receiver under Section 9 of the Act, to take possession
of the leased plant and machinery/ assets/ equipment, and
for the said purpose I direct the appointment of Shri
Rishi Kapur, Manager of the petitioner company as a
Receiver for the purposes of this order allowing the
present petition. He will stand duly authorised to seize
and take possession of the plant and machinery/ assets/
equipment in question as described in para 7(e) of the
petition being:-
SGCI ROLLS’
485 MM XL 1300 1 mt
485 MM XL 760 5 mt
400 MM XL 1020 18 mt
lying at the respondent’s premises at S-10/11, Anantapur
Road, Bellary 583101 (Karnataka), where it is stated to
be lying, or from any other place where it may be found/
available.
6. The Receiver shall stand duly empowered to take
all necessary steps and actions for removal/ detachment
of the said plant and equipment/ assets from any
fastening in the foundation/ floor and/ or from any other
connected machinery and equipment which may be other than
or beyond the leased plant and equipment.
7. The Receiver will be entitled to enter any
premises for the said purposes by opening or breaking of
any locks or doors/ obstruction of any kind whatsoever.
8. The Receiver shall prepare an inventory of the
plant and equipment Along with accessories which are so
seized and removed from the said premises. The Receiver
will obtain atleast five photographs from different
angles both before and after carrying out his functions.
9. The Receiver will be entitled to take away and/ or
remove the said plant and equipment to any other premises
belonging to the petitioner and will ensure that the said
plant and equipment/ machinery/ assets are properly
preserved by adopting all required means and measures for
ensuring that the said plant and equipment/ machinery/
assets are kept safe both in the sense of remaining
intact and as regards the condition thereof at the time
of taking possession.
10. The Receiver will be entitled to avail the
assistance of the local police authorities, who will
extend necessary assistance and protection upon request
being made in that behalf by the Receiver. Upon
relocating the plant and machinery/ assets/ equipment,
the Receiver will inform this Court and the respondent
about’ the location and details of arrangements regarding
upkeep thereof including expenditure thereon.
11. The petition stands disposed of as allowed.
Parties are however left to bear their own costs.