M/S. Sany Heavy Industry India Pvt.Ltd vs Gandharv Singh Yadav & Anr on 3 March, 2025

Calcutta High Court

M/S. Sany Heavy Industry India Pvt.Ltd vs Gandharv Singh Yadav & Anr on 3 March, 2025

Author: Shampa Sarkar

Bench: Shampa Sarkar

    ORDER                                                          OC-30

                   IN THE HIGH COURT AT CALCUTTA
                        COMMERCIAL DIVISION
                            ORIGINAL SIDE


                            AP-COM/984/2024

              M/S. SANY HEAVY INDUSTRY INDIA PVT.LTD.
                             VERSUS
                   GANDHARV SINGH YADAV & ANR.


BEFORE:
The Hon'ble JUSTICE SHAMPA SARKAR
Date: 3rdMarch, 2025.
                                                                     Appearance:
                                                Mr. Subhankar Chakraborty, Adv.
                                                Mr. SaptarshiBhattacharjee, Adv.
                                                         Ms. Sayani Gupta, Adv.
                                                            ... for the petitioner.




      1. Affidavit of service is taken on record.

      2. Although the respondents had been served, the Court had directed

paper publication by way of abundant caution. Affidavit of service

filed today indicates that paper publication in English and Hindi

edition of the Business Standard were made. Despite such service,

none appears on behalf of the respondents.

3. The petitioner is the assignee of a loan. The assignor is Srei

Equipment Finance Ltd. The respondent no.1 is the borrower and

the respondent no.2 is the guarantor. A loan cum hypothecation

agreement dated February 15, 2020 was entered into between Srei
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Equipment Finance Ltd. and the respondents. Credit facility for an

amount of Rs.43,77,500/- was advanced by Srei Equipment

Finance Ltd.

4. Learned Advocate for the petitioner relies on the contract and terms

and conditions thereof, to substantiate that the contract provided

for such assignment. Clause 18 of the said contract provides for

assignment and transfer of the loan. The respondents signed the

agreement being fully aware of the said clause. Upon assignment of

the said loan, the petitioner stepped into the shoes of the lender. It

is submitted that the petitioner is now bound by the terms and

conditions of the agreement. The respondents defaulted. The loan

recall notice was issued by the petitioner on May 31, 2024 and the

demand was made. The credit facility was accordingly terminated.

In the loan recall notice, the issue of assignment was also

elaborately enumerated. Finding no other alternative, the petitioner

invoked the arbitration clause i.e. Clause 23 of the contract.

5. It is the specific case of the petitioner that the said clause provides

for appointment of a learned Arbitrator by the petitioner

company/lender and such mechanism is no longer supported by

the settled legal proposition, after amendment of the Arbitration

and Conciliation Act, 1996. Thus, this application has been filed

before the Court for appointment of a sole Arbitrator.
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6. On June 8, 2024 when the respondents did not pay the dues

despite demand, the notice invoking arbitration was issued. Postal

track report annexed to the application indicates that the said

notice was refused. Endorsement of the postal authority is available

on record. Refusal is a good service.

7. Accordingly, the prayer for appoint of a learned Arbitrator is

allowed.

8. The application is disposed of by appointing Mr. Chayan Gupta,

learned Advocate (M No.7980480010) of this Court as learned

Arbitrator, to arbitrate upon the disputes between the parties. This

order is subject to compliance of Section 12 of the Arbitration and

Conciliation Act, 1996.

9. The learned Arbitrator shall fix his remuneration in terms of the

Schedule of the Act.

10. AP-COM/984/2024 is, accordingly, disposed of.

(SHAMPA SARKAR, J.)

pa/sb