Application Seeking for Interim Measures[CD1]
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
The
humble petition of the petitioner above-named most respectfully
To.
The
Hon'ble………..
Chief
Justice and His
Companion
Justices of the said Hon'ble Court
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 Rshas 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.
14.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.
15.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.
16.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".
17.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.
18.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.
19.Unless orders are made as prayed for
your petitioner will suffer irreparable loss and injury.
20.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 2005.
Before me Commissioner
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