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 1999 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
1. Duncans Tea Co. Limited, a Company registered under the Companies Act 1956 having its registered Office at 6 A.T. Road, Dibrugarh 1, Assam
2. S. Bardhan, working for gain at 6 A.T. Road, Dibrugarh 1, Assam
3. 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:
| Particulars | |
|
Monthly instalment of rent which fell due on ………………… and thereafter
Agreed overdue interest and/or compen sation from the respective due dates
Lease Rental for unexpired lease period
Total |
Rs. ……………… Rs. ……………… Rs. ……………… |
| Rs. ……………… |
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. 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.
13. 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.
14. 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-1”.
15. 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.
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.
Solemnly affirmed by the said ……………… in the Court House at Calcutta this …………… day of …………… 1999.
Before me
Commissioner