Application Seeking for Interim Measures
In the High Court at Calcutta Ordinary Original Civil Jurisdiction
In the matter of:
Arbitration and Conciliation Act
1996
And
In the matter of:
Section 9 of
the said
Act
And
In the matter of:
An Agreement of Lease bearing
No. 2
dated 10th January
2005
entered into
between the parties
And
In the matter of:
21st Century Finance Limited, a
Company registered under the
Companies Act 1956 having its
Corporate
Office at 5 N.S. Road,
Calcutta 700 001
within the said
jurisdiction
Petitioner
versus
Duncans Tea Co. Limited, a Company
registered under the Companies Act
1956
having its registered Office at
6 A.T.
Road, Dibrugarh 1, Assam
S. Bardhan, working for gain at 6
A.T.
Road, Dibrugarh 1, Assam
K. Barua, working for gain at 6
A.T.
Road Dibrugarh 1, Assam all
outside the
said jurisdiction
Respondents
To.
The Hon'ble
...........
Chief
Justice
and
His
Companion
Justices of the said Hon'ble Court
The humble petition of the petitioner
above-named most respectfully
Sheweth:
1. The petitioner has its corporate office at 5 N.S. Road, Calcutta
700 001 within the said jurisdiction.
2. Under a Lease Agreement your petitioner leased out to the first
respondent Tea Processing Machinery with attachments and accessories
described in Schedule I. A copy of the said Lease Agreement is annexed
hereto marked "A". The said Agreement was entered into at the office of the
petitioner at 5 N.S. Road, Calcutta 700 001 within the said jurisdiction.
3. By reason of your petitioner leasing out the said machinery to the
respondent No. 1 at the request of the respondents Nos. 2 and 3, the
respondents Nos. 2 and 3 executed the said agreement and unconditionally
and irrevocably guaranteed due performance of the obligations of first
respondent in payment of instalments, costs and expenses and compensation
recoverable by your petitioner from the respondent No. 1 under the said
lease agreement.
4. By way of security the respondents executed a Demand Promissory
Note and made over the same to your petitioner at Calcutta within the said
jurisdiction.
5. Under the Agreement the respondents were liable to pay
monthly instalments of rent at the rate of Rs
.................
Each
commencing from
...........
6.
The first respondent committed default and failed to pay the instalment
on and from
and a sum of Rs
has now become
due and payable by the respondents to your petitioner particulars of whereof
are given hereunder:
7.
On the defaults of the respondent No. 1 your petitioner became entitled
to claim overdue charges from subsequent period and to terminate and did
terminate the said Agreement by a notice dated
A copy
of the aforesaid letter together with acknowledgment cards evidencing
receipt by the respondents are annexed hereto and collectively marked "B".
8.
After termination of the said Agreement your petitioner became
entitled to take possession of the said machinery. The respondents have not
given back possession of the machinery to your petitioner. The respondents
are wrongfully utilising the said machinery and are liable to pay damages
and/or compensation to your petitioner at the rate of Rs
........
per day
till possession of the machinery is given to the petitioner for which notice
has been given.
9.
Your petitioner is the owner of the machinery and is entitled to have
possession thereof and claims specific delivery of the same in good condition.
In the event specific delivery of the same cannot be had by your petitioner
then your petitioner will claim a sum of Rs
........
being the
approximate value of the said machinery.
10. In spite of demands the respondents have failed and neglected to
pay your petitioner's claims herein and to make over possession of the
machinery,
11. The said Lease Agreement contained an Arbitration Clause to which your petitioner will refer. In the facts and circumstances aforesaid disputes
and differences have arisen in relation to and/or concerning and/or touching
the said Lease Agreement which are referable to Arbitration. Under
section 9 of the Arbitration and Conciliation Act 1996, this Hon'ble Court is
empowered to pass orders for the purpose of preservation and protection of
the assets and properties of the petitioner prior to commencement of the
Arbitration Proceedings.
12. The said machinery require proper handling, constant maintenance and expert care. The first respondent is using the petitioner's machinery at
its factory at Tinsukhia, Assam but not keeping them in good condition and
repair. Your petitioner being the owner is entitled to take possession of the
machinery and deal with the same in such manner as it thinks fit and proper.
13.
The said machinery are being used unauthorisedly and illegally by the
respondents. Your petitioner prays that an order of injunction be passed
restraining the respondents from dealing with, disposing or, alienating,
encumbering and/or using the said machinery in any manner whatsoever.
Further more, the facts and circumstances of this case justify passing an
order appointing a Receiver as prayed for with a direction to take possession
of the machinery and remove the same at your petitioner's godown.
14. The said Agreement provides that your petitioner is entitled to enter
the premises of the Lessee and take possession of the machinery, but in
order to avoid any complications, your petitioner is praying for appointment
of a Receiver to take possession of the machinery and remove the same. The
said Agreement further provides that on the Agreement being determined
before expiry of the full term, the respondents would deliver to your petitioner
all certificates and policy of insurance and other documents relating to the
said machinery and your petitioner prays that appropriate directions be
given accordingly in this regard. If notice of this application is served upon
the respondents, they would immediately take steps to render the
proceedings infructuous. Facts of this case justify passing of an
ex parte
Ad interim
Order.
15.
The respondents are disposing of and depleting their assets and
properties and the sale proceeds are being diverted and secreted. They are likely to deal with, sell or remove the machinery of your petitioner as well as their own assets to prevent execution of the Award which is likely to be
passed in favour of your petitioner after the disputes are referred to
arbitration in terms of the agreement. In the circumstances your petitioner
prays that the respondents be directed to furnish security for
Rs
...........
within
.........
days from the date of passing of
the order and in default thereof the assets and properties of the respondents
be attached. Particulars of such assets and properties are given in the first
respondent's Balance Sheet a copy whereof is annexed hereto marked "C".
The particulars of assets and properties of respondents Nos. 2 and 3 are
given in a Schedule annexed hereto marked "C-l".
Your petitioner prays that an order of injunction be passed restraining
the respondents, their servants and agents from disposing of, alienating,
encumbering or dealing with any of their assets and properties until further
order.
16.
The subject-matter of the relief claimed is valued at more than
Rs. 10 lakhs. Part of the cause of action as pleased in paragraphs
and
arose within the jurisdiction of this
Hon'ble Court. The Agreement was executed at the petitioner's office
and breaches and defaults were committed by non-payment of instalments
at the petitioner's Calcutta Office within the said jurisdiction. The
respondents are wrongfully detaining the machinery at Tinsukhia outside the said jurisdiction. In the premises your petitioner prays for leave under
Clause 12 of the Letters Patent to institute these proceedings before this
Hon'ble Court Arbitration, will be held in Calcutta and the Award will be
filed in this Hon'ble Court. This Hon'ble Court has the jurisdiction to
entertain this application.
17. Unless orders are made as prayed for your petitioner will suffer
irreparable loss and injury.
18. This application is made
bona fide
and in the interest of justice.
19. Your petitioner, therefore, humbly prays Your Lordships
for leave under Clause 12 of the Letters Patent and for
an order that:
(a)A Receiver be appointed over the leased-out
machinery and fully described in Schedule I to the
Lease Agreement which is now lying at Tinsukhia,
Assam or wherever the same may be found with a
direction to take possession of the same forthwith
with the help of an Agent, if necessary, make inventory and remain in symbolic possession
thereof;
(b)Receiver be authorised to take police help and
Officer-in-Charge of the local Police Station in
Tinsukhia, Assam do render such assistance to the
Receiver or his Agent, as may be required;
(c)Injunction restraining the respondents, their
servants and agents from disposing of, alienating,
encumbering or dealing with the machinery
mentioned in the Schedule to the Lease Agreement;
(d)Respondents be directed to show cause as to why
they should not be asked to furnish security within
a period to be specified by this Hon'ble Court for
Rs. 90 lakhs;
(e)
In case of respondents showing cause or
showing insufficient cause they be directed to
furnish security for Rs. 90 lakhs within 15 days
and in default, their assets and properties
mentioned in the Balance Sheet and Schedule
annexed hereto be attached and kept attached till they are sold;
(f)
Ad interim
Orders in terms of the prayers above;
(g)
Costs of and incidental to this application be paid
by the respondents;
(h)
Such further or other Orders be made and/or
directions be given as to this Hon'ble Court may
seem fit and proper.
And your petitioner as in duty bound shall ever pray.
Advocates on Record
Signature
Verification
I,
....................
Constituted Attorney and the Law Officer of the petitioner do hereby solemnly affirm and say that, the statements
made in paragraphs 1 to
....
of the foregoing petition are true to my
knowledge based on information derived from records maintained by
the petitioner and I believe them to be true and those made in
paragraphs
...........
hereinabove are my respectful submissions before
this Hon'ble Court.
S
olemnly affirmed by the said
.........
.
in the Court House at
Calcutta this
day of
2005
.
Before me
Commissioner