R JOSEPH MIRANDA Vs. DHANDAPANI FINANCE PRIVATE LIMITED

JUDGEMENT

(1.) THIS appeal is filed by the borrower challenging the order dated 18.11.2009 in Application No. 6129 of 2009 passed by the learned single Judge appointing an Advocate Commissioner to seize the vehicle - Manitowac Truck Mounted Crame bearing Registration No. TN 59 AH 6711, with Engine No. 84261900 and Chasis No. T52937.

(2.) THE learned senior counsel for the appellant would contend that the appellant has executed a loan agreement on 31.1.2008 for purchase of Manitowac Truck Mounted Crame - 1995 model telescopic mobile crane with the first respondent. Based on the said agreement, the first respondent has advanced a loan of Rs. 30 lakhs to the appellant after securing a promisory note and irrecovable power of attorney in favour of the first respondent. THE second respondent stood as a guarantor for the due repayment of loan by the appellant. As per the agreement, the appellant has to pay the loan amount in equated monthly instalments for which the appellant has also issued post dated cheque in favour of the first respondent. According to the first respondent, even though the appellant has paid 12 instalments promptly upto January 2009 to the tune of Rs. 12,61,000/-, he committed default in payment of the loan amount, therefore, the first respondent sent a lawyer notice on 9.11.2009 to foreclose the loan itself and demanded to pay the entire amount, after adjusting the amount already made.

(3.) THE learned senior counsel for the first respondent would contend that the appellant/borrower is bound to pay the monthly instalemnts but he committed default and paid only Rs. 12,61,000/- out of Rs. 30 lakhs. As there was an over due, under law, the first respondent has got a legal right to re-possess the vehicle. THErefore, to safeguard the loan amount, the first respondent sought permission from this Court to recover the vehicle and there is no need for any notice to the appellant. As per the order passed by this Court, the vehicle was seized with the assistance of the advocate Commissioner. THEreafter, since there is already an irrevocable power of attorney executed by the appellant in favour of the first respondent, the vehicle was sold. Inasmuch as the arbitration proceedings already commenced, this Court cannot pass any order for re-delivering the vehicle, especially, in the absence of a third party purchaser being impleaded in this case. If at all, it is open to the appellant to agitate his grievance before the arbitrator and not before this Court. THErefore, the learned senior counsel for the first respondent would contend that the appellant, being a defaulter in payment of amount, cannot seek any remedy before this Court. Even otherwise, after the seizure of the vehicle, a pre-sale notice dated 7.12.2009 was issued, but the same was returned as 'refused'. THErefore, the asset was sold to one Sakthivel. Further, the matter was referred to an arbitrator as early as on 10.2.2010. Subsequently, the application seeking interim stay was wrongly filed in Application No. 6128 of 2009 instead of Application No. 6126 of 2009. THEreafter, the appellant has now appealed against the order of the seizure of the vehicle. THErefore, there is no merit in the appeal and the appeal is liable to be rejected in limine.