IMPORTANT POINT
Court cannot approve sinister methods to recover loan.

B. Rajendran, J.—This appeal is filed by the borrower challenging the order dated 18.11.2009 in Application No. 6129 of 2009 passed by the learned single Judge appointing an advocate commissioner to seize the vehicle – Manitowac Truck Mounted Crame bearing Registration No. TN 59 AH 6711, with Engine No. 84261900 and Chasis No. T52937.

2. The learned senior counsel for the appellant would contend that the appellant has executed a loan agreement on 31.01.2008 for purchase of Manitowac Truck Mounted Crame – 1995 model telescopic mobile crane with the first respondent. Based on the said agreement, the first respondent has advanced a loan of Rs. 30 lakhs to the appellant after securing a promisory note and irrecovable power of attorney in favour of the first respondent. The second respondent stood as a guarantor for the due repayment of loan by the appellant. As per the agreement, the appellant has to pay the loan amount in equated monthly instalments for which the appellant has also issued post dated cheque in favour of the first respondent. According to the first respondent, even though the appellant has paid 12 instalments promptly upto January 2009 to the tune of Rs. 12,61,000/-, he committed default in payment of the loan amount, therefore, the first respondent sent a lawyer notice on 09.11.2009 to foreclose the loan itself and demanded to pay the entire amount, after adjusting the amount already made.

3. The learned counsel for the appellant would further contend that the appellant had filed O.S. No. 257 of 2009 on the file of Principal District Munsif, Thoothukudi for a bare injunction by contending that a huge amount was demanded by the first respondent without giving credence to the substantial amount paid by the appellant. Pending suit, the appellant sought for interim injunction restraining the first respondent or his men from seizing the vehicle, but no interim order was granted. On notice, the first respondent merely filed a memo stating that as per the loan agreement, there is a clause for arbitration and they intend to invoke the arbitration clause and they did not participate in the enquiry in the suit. Thereafter, on 12.11.2009, the first respondent moved an application under Section 9 of the Arbitration and Conciliation Act before this Court for appointment of an advocate commissioner to seize the vehicle with necessary police aid to break open the premises, if any and also sought permission to sell the vehicle. In the affidavit filed in support of the application, it was stated that after payment of Rs. 12,61,000/- the appellant failed to make any payment. Even though the last instalment was due and payable only on 10.01.2012, by a notice dated 09.01.2009, the first respondent foreclosed the loan itself and demanded payment of the entire loan amount. According to the first respondent, as on 07.11.2009, a sum of Rs. 9,29,625/- had become over due. Since the appellant allegedly failed to pay the loan amount, they have invoked the arbitration clause and raised a dispute. It was only contended that in an earlier attempt when the first respondent made efforts to take possession of the vehicle, it was allegedly resisted by the appellant and that the vehicle is subjected to wear and tear, therefore, they sought for appointment of advocate commissioner to seize the vehicle. The affidavit was filed by the first respondent on 10th November 2009 i.e., the next day of issuance of the legal notice dated 9th November 2009 foreclosing the loan itself. A supporting affidavit was filed by another officer of the first respondent on the same day bringing forth the fact the filing of the suit in O.S. No. 257 of 2009 by the appellant for injunction.

4. The learned senior counsel for the appellant brought to the notice of this Court that on 18.11.2009, this Court passed an ex parte order appointing an advocate commissioner and direction was issued to seize the vehicle and submit a report on or before 02.12.2009. Pursuant to