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Arindam Basu and ors. Vs. Amal Kumar Bose and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtKolkata High Court
Decided On
Case NumberF.M.A. No. 484 of 2004
Judge
Reported inAIR2006Cal295,2006(4)CHN813
ActsSpecific Relief Act, 1963 - Section 6; ;Motor Vehicles Act, 1988 - Section 51(5); ;Indian Penal Code (IPC) - Sections 120B, 323, 392 and 506; ;Constitution of India - Articles 19, 21, 31(1), 32, 226 and 300A; ;Constitution of India (44th Amendment) Act, 1978
AppellantArindam Basu and ors.
RespondentAmal Kumar Bose and ors.
Appellant AdvocateS. Choudhary, ;S. Das and ;P.K. Ghosh, Advs.
Respondent AdvocateKallol Kumar Basu and ;Manoj Malhotra, Advs. for Respondent No. 1;Aloke Ghosh and ;Haridas Das, Advs.;Paritosh Sinha, Adv.
DispositionAppeal allowed
Cases ReferredOrix Auto Finance (India) Ltd. v. Jagmander Singh
Excerpt:
- .....to take possession of the car in terms of hire purchase agreement itself, which authorised the bank to take possession, in the event, there was default in payment of instalments. the bank authority also disputed the maintainability of the writ application itself.4. as pointed out earlier, the learned single judge by the order impugned herein has turned down the objection taken by the hsbc bank and has allowed the writ petition thereby authorising the police authority to seize the vehicle from the custody of the bank and to hand over the same to the writ petitioner.5. mr. chowdhury, the learned counsel appearing on behalf of the bank authority has severely criticised the order passed by the learned single judge and has contended that the writ petitioner being admittedly a defaulter in.....
Judgment:

Bhaskar Bhattacharya, J.

1. This mandamus-appeal is at the instance of the private respondents in a writ application and is directed against the order dated 20th June, 2003 passed by a learned single Judge of this Court thereby allowing the writ application by directing the Police Authority to recover a vehicle from the custody of the private respondents after making an inventory of the same and to hand over the vehicle to the writ petitioner who was previously in possession of the same by virtue of a hire-purchase agreement with the private-respondents. His Lordship further ordered that the writ petitioner would run the vehicle under his exclusive control and would keep the same in a running condition until the entire payment is made to the HSBC Bank Limited, the private respondent, under the agreement. His Lordship had, however, not decided the validity of hire-purchase agreement or the actual amount of outstanding dues payable by the writ petitioner in this writ petition and observed that the said order would not stand in the way of the HSBC Bank Limited from initiating appropriate legal proceedings against the writ petitioner for recovery of outstanding dues and/or taking possession of the vehicle in question.

2. Being dissatisfied, the HSBC Bank Limited, represented by its officers has come up with the present mandamus appeal.

3. The facts giving rise to the filing of the present writ application may be summed up thus:

(a) The writ petitioner purchased a multi utility Tata Safari (4X2) LX Model in the month of September, 2001 through a hire purchase agreement and at that material point of time, the price of the car was Rs. 7,95,218/- only.

(b) The HSBC Bank had financed the petitioner for the purpose of purchasing the car and according to the agreement between the parties, the writ petitioner was required to make a down payment of Rs. 30,000/- only and was under obligation to pay a sum of Rs. 16,702/- a month for a period of five years as monthly instalment.

(c) The writ petitioner admitted in the application that there was no dispute between the parties till the month of May, 2003 but there was an admitted default on the part of the writ petitioner in making payment of monthly instalment for the month of May, 2003, as a result, on 7th June, 2003 while the writ petitioner and his son were driving the car along the Southern Avenue, according to the writ petitioner, the vehicle was forcibly stopped by the men and agents of the HSBC Bank and after stopping the vehicle, they manhandled the writ petitioner and his son and took possession of the petitioner's vehicle and further compelled the petitioner to sign a form which was already filled up. According to the writ petitioner, as stated in paragraph 7 of the application, at the time of signing the form, the writ petitioner had noticed that the said form contained a declaration that the writ petitioner had surrendered the vehicle.

(d) The writ petitioner immediately lodged a diary with the local Police Station and thereafter visited the HSBC Bank and contacted with the respondent No. 6 who admitted that the vehicle had been seized by the Bank but refused to hand over the vehicle back to the writ petitioner. According to the writ-petitioner, the next day, he further visited the Bank with a view that the higher officials of the Bank might sort out the problem amicably but they abused the petitioner and further threatened that the vehicle would not only be retained by them but the same would also be privately auctioned.

(e) The writ petitioner and his son on 11th June, 2003 spotted the car at 7/1, Lake Terrace Road and immediately lodged a further diary with the local Police Station as the Bank Officials refused to return the car. According to the writ petitioner, although, the Police Officers of the Lake Police Station accepted the diary but they did not take any action against the HSBC Bank or its officials for taking forceful possession of the car.

(f) The writ petitioner, thus, prayed for mandamus directing the Police Authority to take forthwith the step for recovery of the car from the Bank in terms of the complaint as well as the General Diary made by the writ petitioner and to ensure that the Bank was restrained from making any further interference in any manner.

(g) The aforesaid prayer was opposed by the Bank authority and according to such authority, there being admitted default on the part of the writ petitioner, they were entitled to take possession of the car in terms of hire purchase agreement itself, which authorised the Bank to take possession, in the event, there was default in payment of instalments. The Bank authority also disputed the maintainability of the writ application itself.

4. As pointed out earlier, the learned single Judge by the order impugned herein has turned down the objection taken by the HSBC Bank and has allowed the writ petition thereby authorising the Police Authority to seize the vehicle from the custody of the Bank and to hand over the same to the writ petitioner.

5. Mr. Chowdhury, the learned Counsel appearing on behalf of the Bank Authority has severely criticised the order passed by the learned single Judge and has contended that the writ petitioner being admittedly a defaulter in the matter of payment of instalments, his clients Had every right to take possession of the vehicle and there was no illegality in the action taken on their part. Mr. Chowdhury submits that the Supreme Court in the various decisions has approved the action of taking possession of the vehicle purchased by hire-purchase agreement in a case of default and thus, there was no misconduct on the part of the Bank in taking possession. Mr. Chowdhury by referring to the two General Diaries lodged by the writ petitioner before the Police Authority points out that no allegation had been made in the General Diary dated 7th June, 2003 immediately after the incident that any offence was committed by the agents of the Bank while taking possession and there was no allegation that the petitioner and his son were manhandled as falsely alleged for the first time in the writ application. Mr. Chowdhury submits that even in the subsequent General Diary dated 11th June, 2003, there is no allegation of physical assault against the writ petitioner and his son and as such, the Police Authority did not commit any illegality by taking no action on the basis of those two General Diaries.

6. Mr. Kallol Kumar Basu, the learned advocate appearing on behalf of the writ petitioner, however, has opposed the aforesaid contentions of Mr. Chowdhury and has contended that even if his client committed any default in payment of instalments, the appropriate remedy of the Bank lay by filing appropriate suit for recovery of the car but it cannot take the law in its own hand and in support of such contention Mr. Basu relied upon the following decisions:

(1) Ashok Kumar Singh v. State of West Bengal and Ors. reported in : AIR2004Cal46 .

(2) Tarun Bhargava v. State of Haryana and Anr. reported in AIR 2003 Punjab and Haryana 98.

7. Therefore, the only question that arises for determination in this mandamus-appeal is in case of admitted default by a hirer, whether the financier is legally entitled to take a possession of the vehicle, which was purchased by hire-purchase agreement, without taking the assistance of the Court.

8. It appears from the order impugned herein that the learned single Judge observed that no one should be deprived of possession of any property without due process of law and that is, according to His Lordship, the mandate of Article 300A of the Constitution of India.

9. It is now settled law that so far the immovable property is concerned, if somebody is dispossessed except by due process of law even by the lawful owner, the person dispossessed of the immovable property can by simply filing a suit under Section 6 of the Specific Relief Act within six months from the date of dispossession, get back possession even he had no title to the property, provided, however, that the dispossession is not by a Government.

10. The aforesaid principle in the case of dispossession from immovable property, however, has no application in the case of hire purchase agreement for moveable property where the hirer himself has agreed with the financier that in case of default, the financier would be entitled to take possession of the vehicle in question.

11. The Supreme Court in the following decisions had the occasions to deal with this type of a case and had come to the conclusion that the financier had every right to take possession of the vehicle, in case of default but in the process of taking possession they should not use any excessive force which would result in an offence punishable under the law:

(a) Charanjit Singh Chadha v. Sudhir Mehra reported in : 2001CriLJ4255 .

(b) Manipal Finance Ltd. v. T. Bangarappa reported in (1994) Supp 1 SCC 507.

(c) Sardar Trilok Singh v. Satyadeo Tripati reported in : 1980CriLJ822 .

(d) K.A. Mathai v. Kora Bibbikutti reported in : (1996)7SCC212 .

12. Thus, if while taking possession, the agent of the financier commits any offence, such as, murder, grievous hurt, hurt etc., they cannot evade their liability for violating the law. In the case before us, the two General Diaries lodged before the Police Station did not mention any allegation about any offence committed by the agent of the Bank but it was only stated that the vehicle was stopped and possession was taken whereas in paragraph 7 of the writ petition, for the first time, the petitioner has made allegation that those people physically manhandled him and his son. It appears that even the writ petitioner admitted that while taking delivery of possession he put his signature on a form whereas in the first General Diary lodged on the selfsame day, it was stated that a couple of person claiming to be the agent of the financier failed to provide them with any kind of identity or stamp of the HSBC Bank and disclosed that the default in payment of instalment was the reason of their taking such action but the petitioner was never intimated in writing about the default in payment by the Bank.

13. Therefore, the allegation of manhandling the petitioner and his son is a new story created for the first time in the writ application as in the two General Diaries lodged before the Police Station there was no such allegation of manhandling and in such a situation, in our opinion, the Police Authority rightly refused to take any action.

14. As pointed out earlier, the Supreme Court in the aforesaid cases pointed out that even if, without the consent of the hirer, the financier takes possession, such act does not amounts to theft of the vehicle or criminal breach of trust if the hirer was really a defaulter in payment of instalment.

15. In our view, Article 300A of the Constitution of India has no application to the fact of the present case. The said Article merely says that no person should be deprived of his property save by the authority of law. This Article has been inserted by the Constitution (44th Amendment) Act, 1978. Prior to this amendment, the right to property was guaranteed by Article 31. While the Sub-clause (1) of that Article has been shifted from part III to the newly inserted Article 300A, the Sub-clause (2) of Article 31, which dealt with compulsory acquisition of the property, has been repealed. The Sub-clause (f) of Clause (1) of Article 19 which assured fundamental right to acquire and hold property has also been omitted by the said amendment with effect from June 20, 1979. The effect of these changes is that (a) the right to hold property has ceased to be a fundamental right and (b) It has been left to the legislature to deprive a person by the authority of law. However, if such law takes away a person's property, without payment of any compensation, the validity of such law cannot be challenged before the Supreme Court as unconstitutional on the ground that no compensation has been sanctioned by such law. If, however, one's property is taken away by the action of the State without the authority of law, one would be entitled to the legal relief on the ground that such State action is in contravention of Article 300A; but as the provision in the present Article has been brought outside the purview of Part III of the Constitution, the aggrieved individual would not be competent to move the Supreme Court under Article 32 for any violation of Article 300A. His remedy would be under Article 226 or by a regular suit. But as the language of Article 31(1) or the present Article 300A has been couched in a negative form just like the language of Article 21 which is still within Part III, any deprivation of property except by the authority of law by a private individual not deriving authority from the State would not come within Article 300A and thus, in such a case of violation not by the State, an application under Article 226 would not be maintainable. Even though Article 21 is within Part III of the Constitution of India, the Apex Court in the case of Smt. Vidya Verma v. Dr. Shiv Narayan Verma reported in : 1956CriLJ283 has specifically held that the violation of personal liberty guaranteed in Article 21 by a private individual does not come within the purview of Article 21. In paragraph 7 of the judgment, the Supreme Court took notice of the earlier decision of that Court in the case of P.D. Samdasani v. Central Bank of India reported in : [1952]1SCR391 where it was held that the violation of the right to property by a private individual did not come within the scope of the then Article 31(1) which is now the Article 300A. Therefore, the learned single Judge wrongly applied Article 300A to an alleged violation of the right of the property of the writ petitioner at the instance of the private-respondents who were not armed with the authority of the State. Even if a private individual dispossess another of the immoveable property without due process of law, a writ-Court on an application under Article 226 of the Constitution of India cannot adjudicate such dispute nor can it direct the police to deliver back possession to the writ-petitioner unless the State-machinery is involved in any way in such illegal action for assisting a private individual.

16. If the owner of a property, himself by agreement conceded to give right to the financier to take possession of the moveable property in case default in payment of instalments and in exercise of that right, the financier takes possession without committing any offence, the hirer cannot take the shelter of Article 300A of the Constitution of India and complain that he was deprived of his property without authority of law.

17. In the Motor Vehicles Act itself, the possession by the financier in terms of hire-purchase agreement has been recognized as would appear from Section 51(5) of the Motor Vehicles Act. A hirer, so long the entire instalments are not fully paid, without taking 'No Objection Certificate' from the financier cannot even transfer the vehicle. Although, by virtue of definition of 'owner' in the Motor Vehicles Act, even a hirer before the instalments are fully paid is treated to be the owner for the purpose of complying with the obligations of an owner referred to in the Motor Vehicles Act, there is no law prohibiting taking of possession by the financier in terms of the agreement, if contracted to by the hirer.

18. We have already pointed out that this point has been settled long back by the Supreme Court in the decisions mentioned above and those decisions were not brought to the notice of the learned Single Judge.

19. We have indicated that the writ-petitioner being admittedly a defaulter in terms of agreement, the financier had the right to take possession and had actually taken possession and in such a situation, no direction could be given to the Police to take back possession of the vehicle from the financier and to hand it over to the hirer thereby permitting him to continue with the possession in violation of the terms of agreement as default had already occurred and a valuable right has accrued in favour of the financier to sell the property.

20. We now propose to deal with the decisions cited by Mr. Basu.

21. In the case of Ashok Kumar Singh v. State of West Bengal and Ors. : AIR2004Cal46 (supra), the same learned Judge while deciding a similar type of case came to the conclusion that in view of Article 300A of the Constitution of India, the financier could not take possession of the vehicle except by filing a suit. In arriving at such conclusion the learned Single Judge relied upon the observation of the Supreme Court in the case of State of U.P. v. Maharaja Dharmander Prasad Singh reported in : [1989]1SCR176 which dealt with the right of a lessor to resume possession by extra judicial method. We have already pointed out that the principle of Section 6 of the Specific Relief Act is applicable only to immovable property and cannot have any application to hire-purchase agreement as referred to in the Supreme Court decisions mentioned above. It appears from the said judgment that although the learned advocate appearing on behalf of the financier placed before His Lordship at least two of the Supreme Court decisions mentioned above. His Lordship without discussing those judgments simply held that none of those judgments authorised any financier to take possession of hypothecated vehicle by applying physical force and, therefore, the decisions were not applicable to the facts of that case. We, thus, do not approve the decision given by the learned Judge in the case of Ashok Kumar Singh, AIR 2004 Cal 46 (supra), as the said decision has been arrived at on misinterpretation of the provision of the Article 300A of the Constitution of India and also by misapplying of the principle as regards the right of a lessee to remain in the leasehold interest even after the termination of the lease except by due process of law to the case of breach of a hire-purchase agreement involving moveable property. In the said decision, his Lordship further relied upon the order impugned herein which was already reported in 2003 (2) CHN (sic) as a precedent.

22. In the case of Tarun Bhargava v. State of Haryana and Anr. AIR 2003 P and H 98 (supra), the Punjab and Haryana High Court was considering a case of quashing of an F.I.R. wherein the offences alleged were under Sections 392/323/506/120B of the Indian Penal Code. While dismissing the petition, the learned Judge came to a conclusion that for enforcing a loan agreement stipulating a term of financing for the purchase of goods on hypothecated basis, the creditor cannot forcibly repossess the hypothecated item though he can enforce the security through Court and a specific clause inserted in an agreement authorising repossession of a vehicle should be held to be void. The said decision is contrary to the four Supreme Court decisions mentioned in this judgment and as such, the same is not a good law.

23. At this stage, it will be profitable to refer to a latest decision of the Supreme Court in the Managing Director, Orix Auto Finance (India) Ltd. v. Jagmander Singh reported in : (2006)2SCC598 , wherein the Supreme Court has specifically held that if the agreements permit the financier to take possession of the financed vehicle, there is no legal impediment on such possession being taken, but of course, the Supreme Court proceeded, the hirer can avail such statutory remedy as may be available but mere fact that possession has been taken cannot be a ground to contend that the hirer is prejudiced and it would not be proper to High Court to lay down any guideline which would in essence amount to variation of the agreed terms of the agreement.

24. The aforesaid decisions, therefore, did not help Mr. Basu's client in any way.

25. On consideration of the entire materials on record, we, therefore, find that the learned Single Judge erred in law in passing the order impugned as the Police had nothing to do in this case. Even on the basis of the General Diary lodged by the writ-petitioner, no offence was apparently committed.

26. It appears that by order of the learned Single Judge, the writ-petitioner is still in possession of the vehicle and in such circumstances, it is a fit case where direction should be given to the writ-petitioner to hand over the vehicle to the financier who in exercise of its legal right lawfully got possession of the vehicle.

27. Mr. Chowdhury, the learned Counsel appearing on behalf of the Bank, however, submits that in terms of the agreement between the parties the actual amount of due payable by the writ-petitioner as on date is Rs. 5,62,136.25 p. and if the entire amount is paid, his client will not pray for getting back the possession of the vehicle.

28. We, therefore, set aside the order impugned and direct the writ-petitioner to hand over possession of the vehicle to the respondents in the same condition in which he got back the car as per order of the learned Single Judge within a fortnight from today unless within the aforesaid period of fortnight, the writ-petitioner pays a sum of Rs. 5,62,136.25 p. as per claim of the Bank subject, of course, to the right of the writ-petitioner to dispute the said claim before the appropriate forum in accordance with law.

29. If such payment is made, the same should be paid by banker's cheque and the Bank will give a receipt for the said amount. The mandamus-appeal is, thus, allowed with costs which we assess at 300 G.Ms. to be paid by the writ-petitioner to the Bank within a fortnight from today.

Prabuddha Sankar Banerjee, J.

30. I agree.


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