The main legal point established is the court's authority to appoint a receiver at an exparte stage, the practical approach required when dealing with banks and financial institutions, and the interpretation of relevant legal provisions under Order 39 and Order 40 of the CPC.

CM No.169/2016 (Exemption)

1. Allowed subject to just exceptions.

CM No.170/2016 (condonation of delay in re-filing)

2. This is an application seeking condonation of delay of 24 days in re-filing the appeal.

3. For the reasons given in the application, the delay is condoned and the application is allowed.

FAO 10/2016

4. This is an appeal filed by the appellant/plaintiff against order dated 19.09.2015 whereby the court has, in effect, refused to appoint a receiver, at the exparte stage.

4.1 By virtue of the aforementioned order, summons were issued in the suit, which was made returnable on 19.10.2015.

4.2 I am informed by the learned counsel for the appellant/plaintiff that the next date of hearing fixed in the matter is 12.01.2016. It is the learned counsels contention that the matter has been fixed for evidence. I am further informed that since the respondents/defendants has been served, evidence has to be led by the appellant/plaintiff.

4.3 The appellant is, however, aggrieved by the fact that it is not able to secure possession of the vehicle in respect of which loan was given to the respondents/defendants.

5. Briefly, it is the appellants/plaintiffs case that the respondent/defendant had sought a loan for purchase of vehicle described as : Tata ACE/Tata ACE, bearing Registration No.UP-14DT 7970 (in short the subject vehicle).

5.1 The learned counsel for the appellant/plaintiff avers that the aforementioned vehicle was hypothecated to it, in accordance with the terms and conditions agreed to with the respondents/defendants. Reliance in this behalf is placed on the credit facility form and unattested deed of hypothecation. It is submitted that the appellant/plaintiff sanctioned a loan to the respondent/defendant in the sum of Rs.3,45,573/-, out of which Rs.3,41,202/- was disbursed on 04.01.2014 via a dealer, namely, Automobile Sterling, Noida.

5.2 According to the appellant/plaintiff, a sum of Rs.3,30,336/- is due and payable by the respondent/defendant as on 23.01.2015.

5.3 It is further submitted before me, that since, the respondents/defendant failed to adhere to the financial discipline, the loan was recalled vide notice dated 02.01.2015. It is the appellants/plaintiffs case that no response was given by the respondents/defendants to the recall notice.

5.4 The learned counsel for the appellant/plaintiff avers that it is, in this background, that a suit was instituted in the trial court, on 19.09.2015, alongwith an application for appointment of a receiver.

5.5 To be noted, the trial court vide the impugned order, has, as indicated above, refused to appoint a receiver at the exparte stage.

5.6 The only discernible reason, based on which the trial court has come to the conclusion that a receiver ought not to be appointed at an exparte stage, appears to be, that no proof of recall notice was filed. The learned counsel for the appellant/plaintiff in this behalf has drawn my attention to the document appended at page 53 of the paper book, which is suggestive of the fact that the recall notice was despatched to the respondents/defendants.

5.7 I may also indicate that the observation by the trial court that no prejudice will be caused if, summons simplicitor are issued in the suit and notice is issued in the application, is untenable, for the reason that if, what the appellant says is correct, each days delay in repayment of the loan is causing prejudice to the appellant/plaintiff. The appellant/plaintiff is a bank which, essentially, deals with public funds and therefore, cannot be left at a loose-end to protect its security. The only security, as contended by the counsel for the appellant/plaintiff, qua the loan disbursed to the respondent/defendant, is the aforementioned vehicle.

6. Therefore, the fact that the trial court failed to appoint a receiver, at an exparte stage when, the situation so demanded, had given rise to an order, which, if not appealable, was, certainly revisable. See : the following observations of the Supreme Court