Full Judgment
AP No.477 of 2012 IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE L & T FINANCE LTD.-VersusM/S.LDS ENGINEERS PVT.LTD.& ANR.
Appearance: Mr.Satarup Banerjee, Adv...for the petitioner.
Mr.Ajit Keshari, Adv...for the respondent.
Mr.Rajarshee Dutta, Adv...for the third party.
BEFORE: The Hon'ble JUSTICE SANJIB BANERJEE Date : October 11, 2012.
The Court : The petitioner in these proceedings under Section 9 of the Arbitration and Conciliation Act, 1996 is a finance company and has carried the application on the respondents’ failure to pay the instalments in terms of the agreement.
The respondents had indicated in couRs.of earlier hearing that the asset that forms the subject-matter of agreement between the parties had apparently been made over to a third party.
Though the petitioner says that the asset could not have been alienated during the currency of the agreement, the petitioner has agreed to accept the balance payment in terms of the agreement from the third party.
An affidavit has been filed by Mofijul Rahaman, who carries on business under the name and style of M.R.Enterprise, undertaking to make payment of the sum due to the petitioner in the manner indicated at paragraph 7 of such affidavit.
The petitioner has also accepted such affidavit.
A.P.No.477 of 2012 is disposed of by taking the affidavit of undertaking on record.
It is also recorded that the respondents have no objection to this arrangement.
The arbitral reference is said to be pending and the petitioner has said that if the payment is made by the third party in the manner indicated in paragraph 7 of the affidavit of undertaking filed in Court by the third party, the petitioner will not pursue the reference and will abandon its claim therein.
The receiver will continue to remain in symbolic possession of the asset till discharged.
The third party has accepted such position.
The third party has also undertaken not to deal with or dispose of or alienate the asset or any part thereof except in the usual couRs.of business.
In default of the payment being made in the manner indicated at paragraph 7 of the affidavit of undertaking, the receiver will be entitled to take possession of the asset as recorded in the affidavit.
There will be no order as to costs.
Urgent certified photocopies of this order, if applied for, be given to the parties subject to compliance with all requisite formalities.
(Sanjib Banerjee, J.) A/s.