APPLICATION SEEKING FOR INTERIM MEASURES[CD1]
In
the High Court
at Calcutta Ordinary
Original Civil Jurisdiction
In the matter of:
Arbitration & 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:
ABC Private Limited Petitioner
Versus
XYZ Private Limited. Respondents
To
A B Private Limited.
MR DFR
Calcutta
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 utilizing 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 unauthorizedly 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.Furthermore, 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 go
down.
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 favor 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 authorized 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;
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;
a. Ad
interim Orders in terms of the prayers above;
b. Costs of and incidental to this application be paid by the
respondents;
c. 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
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.
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