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2007 DIGILAW 1641 (PAT)

Rajendra Pal Singh v. State Of Bihar

2007-10-05

SYED MD.MAHFOOZ ALAM

body2007
Judgment 1. This is an application for quashing the order dated 16.1.2007 passed in Deepnagar P.S. Case No. 130 of 2006 (G.R. No. 1673 of 2006) pending in the Court of the Chief Judicial Magistrate, Nalanda at Biharsharif, whereby the learned court below has been pleased to reject the prayer of petitioner Rajendra Pal Singh for release of the truck bearing registration no. UP-11A-1016 and released the truck, in question, in favour of opposite party no. 2-The Financier, M/s Instalments Supply Ltd., 46, Jan Path, New Delhi. 2. The case of the petitioner is that the petitioner is the owner of the said truck bearing registration no. UP-11A-1016. The vehicle in question stands registered in the name of the petitioner and the petitioner has been paying insurance and road tax. The road permit and fitness certificate also stand in the name of the petitioner. The said vehicle was purchased after obtaining loan amounting to rupees eight lacs from opposite party no. 2. The loan was payable in thirty six instalments commencing from March, 2004 and ending on 31st March, 2007. The petitioner has been regularly making payment of instalment and in token of payment he was being granted provisional receipt. By way of payment the petitioner paid about twenty five instalments up to March, 2006, but on 1.5.2006 the said truck while carrying bags of rice was forcibly seized near Mangla Asthan on N.H. 31 at Biharsharif by some miscreants, namely, Vijay Krishna Singh, Sudhir Kumar and Shailendra Kumar on the plea that they are the agent of opposite party no. 2. One Vijay Krishna Singh filled up the paper of seizure of the seized truck and handed over a copy of the said seizure to the petitioner. The petitioner approached Deepnagar P.S. with a complaint and on his complaint the truck was brought to Deepnagar P.S. but the same was not released to the petitioner on the ground that the incident had taken place within the jurisdiction of Bhagwan Bigha P.S. and then the petitioner approached the Police Officer of Bhagwan Bigha P.S. but the said truck was not released to him, rather, the said Vijay Krishna Singh was allowed to take away the truck. After making several unsuccessful efforts before Deepnagar P.S. and Bhagwan Bigha P.S. and before the A.C.J.M., Barh, the petitioner ultimately filed petition before the learned Chief Judicial Magistrate, Nalanda on 25.11.2006 for release of the truck but by the impugned order the learned Chief Judicial Magistrate, Nalanda, rejected the prayer of the petitioner for release of vehicle in his favour. 3. It has been submitted by the learned Advocate of the petitioner that although it is admitted that the petitioner had purchased the vehicle, in question, after obtaining loan from opposite party no. 2 but it is not correct that the petitioner has defaulted in payment of instalments. Learned Advocate has further submitted that the impugned order is based on the assumption that since there was clause in the agreement between the parties that in case of default in payment of instalment the financier/hirer may with or without notice terminate the contract of hiring and forthwith take possession of the vehicle, as such, opposite party no. 2 by taking possession of the vehicle through its agent has not committed any illegality. Learned Advocate submitted that the view taken by the court below is erroneous in view of the decision of the Apex Court given in the case of ICICi Bank Ltd. vs. Prakash Kaur and Others reported in (2007)2 Supreme Court Cases 711. On the basis of the above referred decision, the learned Advocate of the petitioner has prayed to quash the impugned order. 4. It appears that on direction of this Court notice was issued to opposite party no. 2 to appear before this Court in connection with the hearing of this application. From the office note it transpires that notice was validly served upon opposite party no. 2 but the opposite party no. 2 did not appear before this court. 5. From perusal of the record as well as from the impugned order, it appears that there is no dispute between the parties with regard to the fact that the vehicle, in question, i.e. truck bearing registration no. UP-11A-1016 was seized by the agent of opposite party no. 2. It appears that for seizure of the said truck no legal process was applied, rather, the same was seized by using force. UP-11A-1016 was seized by the agent of opposite party no. 2. It appears that for seizure of the said truck no legal process was applied, rather, the same was seized by using force. From perusal of the decision referred to above by the learned counsel for the petitioner, it appears that the apex Court has condemned the said type of seizure and has held that the seizure of hypothecated vehicle by using force by the financier cannot be said to be valid seizure. In this connection, I would like to quote paras 16 and 28 of the said decision which are as follows: "16. Before we part with this matter, we wish to make it clear that we do not appreciate the procedure adopted by the Bank in removing the vehicle from the possession of the writ petitioner. The practice of hiring recovery agents, who are musclemen, is deprecated and needs to be discouraged. The Bank should resort to procedure recognised by law to take possession of vehicles in cases where the borrower may have committed default in payment of the instalments instead of taking resort to strong-arm tactics. 28. In. conclusion, we say that we are governed by the rule of law in the country. The recovery of loans or seizure of vehicles could be done only through legal means. The banks cannot employ goondas to take possession by force." 6. On the basis of the decision referred to above, I have come to the conclusion that the opposite party no. 2 whiie taking forcible possession of the truck, in question, has adopted improper procedure not recognised by law and, therefore, the opposite party no. 2 is not entitled to continue the possession of the truck, in question, rather the proper course is to restore the possession of the truck to the petitioner, who is the registered owner of the said truck. 7. in such view of the matter, I am of the view that this application has got merit and, as such, the same is hereby allowed. . The impugned order dated 16.1.2007 passed in Deepnagar P.S. Case No. 130 of 2006 whereby the learned Chief Judicial Magistrate, Nalanda at Biharsharif, had handed over the possession of the truck to opposite party no. 2 is hereby set aside and the opposite party no. . The impugned order dated 16.1.2007 passed in Deepnagar P.S. Case No. 130 of 2006 whereby the learned Chief Judicial Magistrate, Nalanda at Biharsharif, had handed over the possession of the truck to opposite party no. 2 is hereby set aside and the opposite party no. 2 is directed to handover the possession of the said truck immediately to the petitioner on production of a copy of this order and if the opposite party no. 2 fails to handover the possession of the truck, in question, to the petitioner, the Supdt. of Police, Nalanda, will take possession of the truck through any police officer and will hand over the possession of the truck to the petitioner after taking a bond from him that, if required, he would produce the truck before the court/authority and shall not sell the same to any other party till payment of the entire loan amount. However, liberty is given to opposite party no. 2 to act in accordance with law for recovery of the loan amount and for seizure of the truck in question in case of non-payment of instalments. 8. In the result, this application is allowed.