Based on the provided legal document, here are the key points regarding the appointment of an Advocate Commissioner and the powers of the Civil Court under Section 9 of the Arbitration and Conciliation Act, 1996:

• Civil Court Jurisdiction: The Civil Court possesses the jurisdiction to appoint an Advocate Commissioner for the seizure of hypothecated vehicles under Section 9 of the Arbitration Act, a power that is analogous to the court's authority to appoint a Receiver for seizing suit property under the Civil Procedure Code (Order 39, Rule 7). (!)
• Nature of Hypothecation: Hypothecation is not a statutory creation but is defined under Section 2(1)(n) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 [SARFAESI Act] as a charge created without the delivery of possession of the movable property. (!)
• Contractual Autonomy: The rights attached to a hypothecation are governed by the terms of the contract between the financier and the borrower. If the agreement includes a specific clause empowering the financier to take possession or appoint a Receiver in case of default, the court is obligated to honor these terms, and the court has the power to appoint an Advocate Commissioner to enforce such a separate provision. (!)
• Statutory Basis for Powers: Section 9 of the Arbitration Act incorporates provisions similar to Order XXXIX, Rule 7 of the Code of Civil Procedure regarding the detention, preservation, or inspection of property, thereby enabling the court to authorize a person to enter land/buildings and seize property. (!) (!)
• Procedural Guidelines: While financial institutions can seek ex parte orders to appoint an Advocate Commissioner for seizure if it appears just and convenient, the court must simultaneously issue notice to the respondent. The vehicle seized shall be held in custodia legis (in the custody of the court) on behalf of the applicant. (!) (!)
• Necessity of Arbitration Initiation: Before closing an application for seizure, the court must ascertain whether the applicant has initiated arbitral proceedings; if not, the court may pass orders putting the applicant on terms as laid down in Sundaram Finance's case, as Section 9 relies on a close nexus with the initiation of arbitration. (!)
• Precedent and Guidelines: The guidelines issued by the Division Bench in Cholamandalam DBS Finance Ltd vs. Sudheesh Kumar [2010 (1) LW 951] regarding the appointment of an Advocate Commissioner currently hold the field, affirming that such appointments are not mechanically done without considering disputed questions. (!) (!)
• Discretionary Power: The power under Section 9 is discretionary and must be exercised sparingly, ensuring that effective steps are taken to commence arbitral proceedings, and cannot be used as a matter of course or as a drastic remedy without utmost circumspection. (!) (!) (!)
• Restrictions on Force: While ownership may remain with the hirer until changed, this does not entitle them to take back possession by force based on the agreement; the court's intervention via an Advocate Commissioner is the proper legal route. (!)