Magma Fincorp Ltd. Vs. Goutam Sonkar and anr. - Court Judgment

SooperKanoon Citationsooperkanoon.com/1059358
CourtKolkata High Court
Decided OnJan-25-2012
JudgeSANJIB BANERJEE
AppellantMagma Fincorp Ltd.
RespondentGoutam Sonkar and anr.
Excerpt:
in the high court at calcutta ordinary original civil jurisdiction original side a.p.no.1098 of 2011 magma fincorp ltd.versus goutam sonkar & anr. & a.p.no.39 of 2012 magma fincorp ltd.versus goutam sonkar & anr. & g.a.no.190 of 2012 a.p.no.409 of 2010 goutam sonkar versus magma fincorp ltd.appearance mr.mainak bose, advocate mr.k.k.pandey, advocate mr.abhirup chatterjee, advocate before: the hon'ble justice sanjib banerjee date :25. h january, 2012. the court : a.p.no.1098 of 2011 is the financier’s earlier application under section 9 of the arbitration and conciliation act, 1996 at the post-award stage. the petitioner says that in view of the more recent application, a.p.no.39 of 2012, having been filed, a.p.no.1098 of 2011 may be disposed of. g.a.no.190 of 2012 is the hirer’s application for recalling an order dismissing a.p.no.409 of 2010 for default. a.p.no.409 of 2010 was the hirer’s application for challenging the award. this is the second application for restoration. the financier says that the application was dismissed before and it was only upon the award being put into execution was the challenge to the award sought to be revived. it appears that a sum of about rs.18 lakh is due, according to the hirer, on account of defaulted instalments. the financier, however, claims that the financier is entitled to the sum awarded which is in excess of rs.27 lakh. the matter had been adjourned on at least two occasions to enable the hirer to put in some money to continue to enjoy the construction vehicle that forms the subject-matter of the agreement between the parties. despite opportunities being afforded to the hirer, no money has been forthcoming and every excuse is made for the matter not to be taken up. in fact, advocate appearing for the hirer says that the matter should be adjourned for information being obtained as to where the construction vehicle may not be located. there will be an order of injunction restraining the hirer and the guarantor from dealing with or disposing of or alienating or encumbering or creating any third party interest in respect of the construction vehicle that forms the subject-matter of the agreement between the parties or any part or component thereof in any manner whatsoever. the receiver appointed in the earlier proceedings under section 9 of the arbitration and conciliation act, 1996 is re-appointed receiver in a.p.no.39 of 2012 with a direction to immediately take possession of the construction vehicle. the receiver is permitted to appoint an agent to ascertain the whereabouts of the construction vehicle for the receiver to take possession thereof immediately upon discovering the location thereof. for such purpose, the receiver will be entitled to seek and obtain police assistance and the superintendent of police exercising jurisdiction over the area or like official should extend all cooperation to the receiver. the receiver will be paid an initial remuneration of 800 gm and all expenses for the receiver’s travel, accommodation and the like will be borne by the petitioner and added to the claim in the possible execution proceedings. the hirer and the guarantor are restrained from using the construction vehicle in any manner or from removing or transporting it from wherever it may not be situate. till such time that the receiver takes possession of the construction vehicle, in the light of the hirer’s conduct, the application for restoration of the section 34 proceedings will remain adjourned. a.p.no.1098 of 2011, which is the financier’s earlier application under section 9 of the 1996 act, is disposed of without any further order. there will be no order as to costs. in a.p.no.39 of 2012, affidavit-in-opposition be filed within a fortnight from date; reply thereto, if any, be filed within two weeks thereafter and the matter will appear as an adjourned motion in the monthly list of march, 2012. the same affidavit directions will apply to the restoration application which will also appear along with a.p.no.39 of 2012 in the monthly list of march, 2012. urgent certified photocopies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities. (sanjib banerjee, j.) sg.
Judgment:

IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE A.P.No.1098 of 2011 MAGMA FINCORP LTD.Versus GOUTAM SONKAR & ANR.

& A.P.No.39 of 2012 MAGMA FINCORP LTD.Versus GOUTAM SONKAR & ANR.

& G.A.No.190 of 2012 A.P.No.409 of 2010 GOUTAM SONKAR Versus MAGMA FINCORP LTD.Appearance Mr.Mainak Bose, Advocate Mr.K.K.Pandey, Advocate Mr.Abhirup Chatterjee, Advocate BEFORE: The Hon'ble JUSTICE SANJIB BANERJEE Date :

25. h January, 2012.

The Court : A.P.No.1098 of 2011 is the financier’s earlier application under Section 9 of the Arbitration and Conciliation Act, 1996 at the post-award stage.

The petitioner says that in view of the more recent application, A.P.No.39 of 2012, having been filed, A.P.No.1098 of 2011 may be disposed of.

G.A.No.190 of 2012 is the hirer’s application for recalling an order dismissing A.P.No.409 of 2010 for default.

A.P.No.409 of 2010 was the hirer’s application for challenging the award.

This is the second application for restoration.

The financier says that the application was dismissed before and it was only upon the award being put into execution was the challenge to the award sought to be revived.

It appears that a sum of about Rs.18 lakh is due, according to the hirer, on account of defaulted instalments.

The financier, however, claims that the financier is entitled to the sum awarded which is in excess of Rs.27 lakh.

The matter had been adjourned on at least two occasions to enable the hirer to put in some money to continue to enjoy the construction vehicle that forms the subject-matter of the agreement between the parties.

Despite opportunities being afforded to the hirer, no money has been forthcoming and every excuse is made for the matter not to be taken up.

In fact, Advocate appearing for the hirer says that the matter should be adjourned for information being obtained as to where the construction vehicle may not be located.

There will be an order of injunction restraining the hirer and the guarantor from dealing with or disposing of or alienating or encumbering or creating any third party interest in respect of the construction vehicle that forms the subject-matter of the agreement between the parties or any part or component thereof in any manner whatsoever.

The receiver appointed in the earlier proceedings under Section 9 of the Arbitration and Conciliation Act, 1996 is re-appointed receiver in A.P.No.39 of 2012 with a direction to immediately take possession of the construction vehicle.

The receiver is permitted to appoint an agent to ascertain the whereabouts of the construction vehicle for the receiver to take possession thereof immediately upon discovering the location thereof.

For such purpose, the receiver will be entitled to seek and obtain police assistance and the Superintendent of Police exercising jurisdiction over the area or like official should extend all cooperation to the receiver.

The receiver will be paid an initial remuneration of 800 GM and all expenses for the receiver’s travel, accommodation and the like will be borne by the petitioner and added to the claim in the possible execution proceedings.

The hirer and the guarantor are restrained from using the construction vehicle in any manner or from removing or transporting it from wherever it may not be situate.

Till such time that the receiver takes possession of the construction vehicle, in the light of the hirer’s conduct, the application for restoration of the Section 34 proceedings will remain adjourned.

A.P.No.1098 of 2011, which is the financier’s earlier application under Section 9 of the 1996 Act, is disposed of without any further order.

There will be no order as to costs.

In A.P.No.39 of 2012, affidavit-in-opposition be filed within a fortnight from date; reply thereto, if any, be filed within two weeks thereafter and the matter will appear as an adjourned motion in the monthly list of March, 2012.

The same affidavit directions will apply to the restoration application which will also appear along with A.P.No.39 of 2012 in the monthly list of March, 2012.

Urgent certified photocopies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.

(SANJIB BANERJEE, J.) sg.