Judgment:
Anoop V. Mohta, J.
1. Heard finally.
2. The petitioner has invoke Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred as the Act) as the Respondents committed defaults in payment based upon loan agreement dated 15th October, 2007 of which the Arbitration clause as under:
LAW, JURISDICTION, ARBITRATION
(a) All disputes, differences and/or claim arising out of or touching upon this Agreement whether during its subsistence or thereafter shall be settled by arbitration in accordance with the provisions of the Arbitration and Conciliation Act, 1996, or any statutory amendments thereof and shall be referred to the sole Arbitration of an Arbitrator nominated by the lender. The award given by such an Arbitrator shall be final and binding on the Borrower and Coborrower to this agreement.
(b) Dispute for the purpose of Arbitration includes default committed by the Borrower as per Clause 14 of this Agreement.
It is a term of this agreement that in the event of such an Arbitrator to whom the matter has been originally referred to dying or being unable to act for any reason, the Lender, at the time of such death of the arbitrator or of his inability to act as arbitrator, shall appoint another person to act as arbitrator. Such a person shall be entitled to proceed with the reference from the stage at which it was left by his predecessor.
(c) The venue of Arbitration proceedings shall be at Chennai.
(d) The arbitrator so appointed herein above, shall also be entitled to pass an Award on the hypothecated asset and also on any other securities furnished by or on behalf of the Borrower/Coborrower.
(e) All notices and other communications on the Lender and the Borrowers shall be to the following address:
For Lender : Corp. Off. Retail: Induslnd Bank Ltd., 86
Sudarsan Building, Chamiers Road, Chennai600 018.
For Borrower : The residential address stated in the schedule or the property address described in the schedule.
3. By an affidavit dated 7th September, 2009 a preliminary objection is raised about the maintainability of the present petition.
4. There is no serious dispute about the defaulted amount except general denial. The objection is also raised that as amount is more then 10 lakhs, the petitioner needs to approach the D.R.T. and not this Court.
5. Admittedly, there is no such clause in the agreement. The petitioner is a financial institution that itself cannot be the reason that the petition under Section 9 of the Act is not maintainable to secure the amount, unless prohibited expressly or impliedly. In the present case, admittedly, there is no such expressed or implied clause to prevent the petitioner from filing such petition under Section 9 of the Act.
6. Clause 23 is referred above nowhere provides any clause of exclusive jurisdiction. However, provides that the venue of arbitration shall be at Chennai that in no way sufficient to debarred the petitioner from filing the present petition at Mumbai. The Petitioner's State Office is at Mumbai. The Respondents are resident of Navi Mumbai. The vehicle was handed over in Mumbai. The Respondents is not in position to state whether the crane/machinery is in use and is at what site. The Respondents issued cheques from Mumbai to the Petitioner's Nariman Point office at Mumbai.
7. Therefore, in absence of any exclusive clause, for the purpose of Section 9 petition, it is sufficient to consider the averments made by the petitioner for the interim protection or the relief as prayed. This Court has jurisdiction to grant protection/interim relief.
8. Admittedly, an Arbitrator is appointed at Chennai. The arbitration proceedings is pending.
9. Considering the averments made, and as there is admitted default and as the defence so raised in the reply, that in my view is not sufficient to deny the case as made out by the Petitioner, for the interim protection, as already granted in terms of prayer clause 'c'.
10. The various disputed facts though raised in the reply that are necessary to be dealt with by the Arbitrator Tribunal.
11. As noted the vehicle is a movable property. The Respondents have been using the same without making due payments. Therefore, I am of the opinion that the case is made out by the Petitioner to grant relief in terms of prayer clause 'f' also . However, time is granted to Respondents to furnish solvent security subject to the satisfaction of the Petitioner, to secure the amount, within eight weeks instead of, Bank Guarantee.
12. I do not deny the right of the Respondents to settle the matter and raise the appropriate defence before the Tribunal. In the result, the petition is allowed in terms of prayer clause 'c' and 'f'. No cost.