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2003 DIGILAW 299 (CAL)

AMAL KUMAR BOSE v. STATE OF WEST BENGAL

2003-06-20

PRANAB KUMAR CHATTOPADHYAY

body2003
PRANAB KUMAR CHATTOPADHYAY, J. ( 1 ) THE petitioner herein has filed this application challenging the inaction on the part of the police authorities for taking steps to recover the vehicle which according to the petitioner has been taken away by the muscle men of HSBC Ltd. Admittedly, the said vehicle was taken under the Hire purchase Agreement executed with the hsbc Ltd. ( 2 ) THE learned Counsel of the petitioner submits that the monthly instalment for the month of May, 2003 could not be paid due to the failure of the Banker of the petitioner and due to the non-payment of the said instalment the muscle men of HSBC Ltd. took forcible possession of the vehicle from the petitioner on 7-6-2003. ( 3 ) THE learned Counsel of the respondent Nos. 5, 6 and 7 admits that no order has been obtained from any Court of law for taking possession of the said vehicle in terms of the hire purchase agreement. According to the learned Counsel of the Bank, the possession of the vehicle was taken under the agreement for failure of making payment of the instalments. ( 4 ) IN my view, in a civilised society the financial institutions, particularly the bankers, cannot take possession of the vehicle by using physical force. The authorities of the HSBC Ltd. never initiated proceeding before any Court of law for the purpose of taking possession of the vehicle. It has been mentioned in the Writ Petition that while the petitioner and his son were driving the car on the Southern Avenue, the muscle men of the Bank forcibly took possession of the vehicle. The authorities of the Bank should have adopted a civilised mode and manner for taking possession of the vehicle which was with the petitioner under hire purchase agreement. By flexing muscle power, the financial institutions, particularly the Bank, should not take possession of the hypothecated vehicle. The respondent Bank has adopted a procedure which has established a dangerous trend leading to a serious law and order problem. ( 5 ) IT has been alleged by the petitioner that in spite of lodging complaints with the police authorities, no step has yet been taken to recover the vehicle. ( 6 ) THE aforesaid inaction on the part of the police authorities has been specifically challenged in the present writ petition. ( 5 ) IT has been alleged by the petitioner that in spite of lodging complaints with the police authorities, no step has yet been taken to recover the vehicle. ( 6 ) THE aforesaid inaction on the part of the police authorities has been specifically challenged in the present writ petition. In my view, the police authorities cannot ignore the complaints lodged by the petitioner and refuse to take any step to recover the vehicle although the said vehicle was forcibly taken away from the possession of the petitioner by the muscle men of the Bank. Admittedly, the petitioner was in possession of the vehicle in question and the same was forcibly taken away by the muscle men of the Bank in absence of any order passed by any Court of law. ( 7 ) IN my view, no one can be deprived of the possession of any property without due process of law. This is the mandate of Article 300a of the Constitution of India which runs as follows : "300a. No person shall be deprived of his property save by authority of law. " the authority of law would obviously mean the due authority of a valid law. Rule of law which is the basic postulate of our Constitution also demands this. Therefore, the bank cannot take the law in its own hand as it is trying to do in this case. ( 8 ) IN the aforesaid circumstances, the police authorities particularly the respondent Nos. 2 and 4 are directed to recover the vehicle in question from the custody of the hsbc Ltd. immediately and hand over the same to the petitioner from whose custody the said HSBC Ltd. took forcible possession of the vehicle after making an inventory of the same. However, the petitioner will run the vehicle under his exclusive control and will keep the same in a running condition until the entire payment is made to the hsbc Ltd. under the agreement. ( 9 ) THE learned Counsel of the respondent Nos. 5, 6 and 7 raised an objection regarding maintainability of this writ petition. ( 10 ) THE petitioner herein has admittedly, challenged the inaction on the part of the police authorities for not taking steps to recover the vehicle in question which has been forcibly taken away by the muscle men engaged by the Bank. 5, 6 and 7 raised an objection regarding maintainability of this writ petition. ( 10 ) THE petitioner herein has admittedly, challenged the inaction on the part of the police authorities for not taking steps to recover the vehicle in question which has been forcibly taken away by the muscle men engaged by the Bank. Accordingly, this Writ petition is very much maintainable before this Court and I do not find any merit in the aforesaid objection of the learned Advocate of the Respondents Officers of the Bank. ( 11 ) IT may be recorded that I have not decided the validity of the Hire Purchase agreement and/or actual amount of outstanding dues payable by the petitioner in this Writ Petition. ( 12 ) I also make it clear that disposal of this Writ Petition will not prevent the authorities of the HSBC Ltd. from initiating appropriate legal proceeding against the petitioner for recovering the outstanding dues and/or taking possession of the vehicle in question. ( 13 ) THIS Writ Petition is thus disposed of. There will be, however, no order as to costs. ( 14 ) THE learned Advocate of the Respondents Officers of the Bank prays for stay of the operation of this order. Such prayer is considered and rejected. ( 15 ) LET a xerox plain copy of this order duly countersigned by the Assistant Registrar (Court) be given to the learned Advocates of the parties. Order accordingly.