AP No. 515 of 2011
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
SREI EQUIPMENT FINANCE PVT. LTD.
Versus
MR.SHANTANU SARKAR AND ANR.
BEFORE:
The Hon'ble JUSTICE I. P. MUKERJI
Date : 8th June, 2011.
Mr.Swatarup Banerjee, Adv.,
for the petitioner.
Mr.Pradip Kumar Roy, Adv.,
for the respondent no.1.The Court : This is a Section 9 application.
It is made after a Section 17 application made by the
petitioner-financier. The purpose of the Section 17
application was to obtain possession of an excavator which
was the subject matter of the loan-cum-hypothecation
agreement between the parties. Although the learned
Arbitrator passed a direction for a custodian to take
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possession of the excavator, that order could not be carried
out.
Hence, this application. It is submitted that the hirer
has admitted in the counterclaim before the Arbitrator that
Rs.30 lakh was owing by him to the petitioner. The petitioner
wants orders for possession of the excavator.
From the submissions of the learned Advocate for the
petitioner it appears that the monthly hire of this excavator
is Rs.2,54,400/-. The learned Counsel for the hirer, however,
submits that this amount was for two equipments, one of which
is not the subject matter of this application.
Whether the hirer has admitted Rs.30 lakh or not has to
be determined on affidavits. But the fact remains that the
hirer is in possession of the equipment and not paying any
amount for its use.
In those circumstances, I appoint Mr.Netai Chand Manna,
Bar Association as Receiver at an initial remuneration of 700
GMs to be paid by the petitioner to take symbolic possession
of the excavator which is located near Ruby Hospital in
Kolkata without disturbing the possession of the hirer. The
hirer will without prejudice to the rights and contentions of
the parties pay Rs.1,50,000/- per month from June 2011 to the
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petitioner-financier as hire charges. Such hire charges are
payable by the seventh of the succeeding month. This means
that hire charges for June have to be paid by the 7th of July,
2011. In default, the petitioner will be at liberty to apply
to this Court to take appropriate measure for possession of
the excavator.
Affidavit-in-opposition be filed by 28th June, 2011. List
this application on 12th July, 2011. Affidavit-in-reply may be
filed in the meantime.
I also pass an order of injunction in terms of prayer
(f) till the disposal of this application.
All parties concerned are to act on a signed photocopy of
this order on the usual undertakings.
(I. P. MUKERJI, J.) Sd/