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2007 DIGILAW 588 (CAL)

BHANU PRATAP SINGH v. STATE OF W. B

2007-08-02

BHASKAR BHATTACHARYA, RUDRENDRA NATH BANERJEE

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( 1 ) AFTER hearing the learned Counsel for the parties and after going through the explanation given herein, we find that the appellant was prevented by sufficient cause from preferring the appeal within the period of limitation. We, thus, condone the delay in preferring the appeal. ( 2 ) THE application for condonation of delay under section 5 of the Limitation act being CAN No. 5221 of 2007 is disposed of accordingly. Re: An application for stay being CAN No. 5222/2007. ( 3 ) INSTEAD of taking up the application for stay, we propose to hear out the appeal itself by treating it as on day's list. ( 4 ) BY this mandamus appeal an unsuccessful writ petitioner has challenged two orders, one dated 8th August, 2006 passed by a learned Single Judge thereby dismissing a writ application and the other dated 20th April, 2007 passed by his Lordship thereby refusing to recall the earlier order dated 8th August, 2006. ( 5 ) IN the writ application, the grievance of the writ petitioner was that he took loan from respondent No. 4 for the purpose of purchasing a truck and, accordingly, a hire purchase agreement was entered into between the writ petitioner and the respondent No. 4. Pursuant to such agreement, a truck has been purchased and the writ petitioner was in possession of such truck. ( 6 ) IN the writ application, it was alleged that there was non-payment of three instalments in accordance with the terms of the hire purchase agreement. It was stated in the writ application that on 8th June, 2006 he sent one of his employee to the respondent No. 4 for the purpose of giving the monthly instalment, but the said employee on the way to the office of respondent No. 4 informed him that the truck had been forcibly taken at the point of revolver, knife, etc. and after driving away the drive and the khalashi, the said truck was kept in a parking place named 'dey Motor' on Bombay Road. It was further alleged that the writ petitioner contacted with the respondent No. 4 over telephone for return of the vehicle, but the respondent No. 4 threatened him with the dire consequences of killing, in the event, he tried to release the vehicle. It was further alleged that the writ petitioner contacted with the respondent No. 4 over telephone for return of the vehicle, but the respondent No. 4 threatened him with the dire consequences of killing, in the event, he tried to release the vehicle. In view of such fact, he made a written complaint to the local police station for taking action and a copy of such letter was also given to the Superintendent of police; but in spite of such complaint, no action was taken. ( 7 ) IN the writ application, the first prayer was that the police authority should be directed to proceed with the complaint lodged by the petitioner in accordance with law and the other relief claimed was that the police authority should be directed to recover the vehicle and to hand over the same to the writ petitioner. ( 8 ) IT appears from record that the learned Single Judge by the first order, namely, the order dated August 8, 2006 by relying upon unreported decisions of a Division Bench of this Court of MAT No. 2302 of 2005 and APOT No. 674 of 2005, held that the case in hand was covered by the decisions given therein and, accordingly, the writ application was dismissed. ( 9 ) SUBSEQUENTLY, the writ petitioner filed an application for review of the said order on the ground that those decisions were not applicable to the fact of the present case. ( 10 ) BY the second order, namely, the order dated 20th April, 2007, the learned single Judge dismissed such application. ( 11 ) BEING dissatisfied with the aforesaid two orders passed by the learned single Judge, the writ petitioner has come up with the present mandamus appeal. ( 12 ) MR. Roy the learned Advocate appearing on behalf of the appellant, by relying upon a decision of the Supreme Court in the case of Manager, ICICI bank Ltd. vs. Prakash Kaur and Ors. , reported in 2007 (1) Crimes 407 (SC), contended that in view of the aforesaid decision of the Supreme Court, it was the duty of the learned Single Judge to allow the application and it is a fit case where this Court should pass direction upon the police authority to return the vehicle and also to proceed against the respondent on the basis of the complaint lodged by his client. ( 13 ) THE aforesaid contention of Mr. Roy was opposed by Mr. Bose, the learned advocate appearing on behalf of the respondent No. 4 and he relied upon a decision of the Supreme Court in the case of Hari Singh vs. State of U. P. , reported in 2006 (5) SCC 733 wherein the Supreme Court held that merely because the police had not taken any action on the basis of complaint lodged by a person alleging criminal offence, a writ application was not maintainable; but appropriate remedy of the petitioner lay before the Criminal Court under the provisions of the Code of Criminal Procedure. ( 14 ) AFTER hearing the learned Counsel for the parties and after going through the materials on record, we find that in the writ application, the writ petitioner admitted default in the matter of making payment of instalments as per agreement. Therefore, this is not a case where in spite of committing no default in payment, the respondent forcibly took possession of the vehicle. In a case, where a borrower has committed undisputed default in payment of instalments and there is a specific stipulation that in the case of default, the lender will have the right to take possession of the vehicle, in our view, the writ petitioner, cannot come up before the High Court for direction upon the police authority to return the vehicle from the lender who has taken possession of the vehicle for breach of terms of the agreement, as pointed out by the Supreme Court in the following cases: (a) Charanjit Singh Chadha vs. Sudhir Mehra, reported in 2001 (7) SCC 417 . (b) Manipal Finance Ltd. vs. T. Bangarappa, reported in 1994 Sup 1 SCC 507. (c) Sardar Trilok Singh vs. Satyadeo Tripati, reported in 1979 (4) SCC 396 . (d) K. A. Mathai vs. Kara Bibbikutti, reported in 1996 (7) SCC 212 . In this type of a case, the lender is entitled to take possession of the vehicle, but while taking possession excess force should not be used and in the process of talking possession, no offence punishable under the law should be committed. ( 15 ) WE are, therefore, unable to accept the contention of Mr. Roy that this was a case of robbery. ( 15 ) WE are, therefore, unable to accept the contention of Mr. Roy that this was a case of robbery. In one of the aforesaid cases, the Supreme Court held that for taking possession of the vehicle for non-payment of instalment without the consent of the borrower, such act did not even amount to theft. ( 16 ) IN this connection, Mr. Roy placed strong reliance upon the decision of the Supreme Court in the case of Manager, ICICI Bank Ltd. vs. Prakash Kaur and Ors. (supra) where the Supreme Court expressed its desire that law should be enacted for the purpose of resolving this type of dispute and a separate wing should be created wherein appropriate training should given in accordance with the RBI guidelines which would facilitate the bank in its recovery process and also would provide more responsibilities to the persons so engaged. ( 17 ) IT appears that before the said Bench consisting of two Hon'ble Judges, attention was not drawn to the earlier decisions of the Supreme Court even of the larger Bench, as mentioned above, where the Supreme Court took a contrary view thereby approving the action on the part of the financial institutions in taking possession of the vehicle, however, without committing any offence in the process. The said decision in the case of ICICI Bank therefore cannot be used as a precedent in this type of a case (See Union of India vs. Hansoli Debi, reported in AIR 2002 SC 3240 . ( 18 ) THEREFORE, we find that the writ petitioner in the application having admitted default in payment of instalments was not entitled to get an order for recovery of vehicle which has been already taken by the financier. Moreover, in this type of dispute, no direction can be given to the police for the purpose of taking the vehicle from the financier and to hand over the same to an admitted defaulter. Therefore, the prayer (b) mentioned in the writ application was not maintainable. ( 19 ) THE next question is whether on the basis of complaint lodged before the police the writ petitioner could straightaway move a Writ Court thereby praying for a direction upon the police authority to start investigation without moving the appropriate Criminal Court. Therefore, the prayer (b) mentioned in the writ application was not maintainable. ( 19 ) THE next question is whether on the basis of complaint lodged before the police the writ petitioner could straightaway move a Writ Court thereby praying for a direction upon the police authority to start investigation without moving the appropriate Criminal Court. ( 20 ) IN this connection, we find substance in the contention of the learned advocate appearing for the respondent without taking recourse to provisions contained in the Code of Criminal Procedure as pointed out by the Supreme court in the case of Hari Singh (supra), a writ application is not maintainable at the first instance. Therefore, in the case before us, there is also no scope of passing a direction upon the police authority to investigate when the writ petitioner has appropriate remedy available under the Code of Criminal procedure. ( 21 ) WE, thus, find no reason to interfere with the orders passed by the learned single Judge and the mandamus appeal is, thus, dismissed. ( 22 ) WE make it clear that dismissal of this appeal will not stand in the way of the appellant in approaching appropriate forum in accordance with law. ( 23 ) IN view of dismissal of the appeal itself, the connected application for stay being CAN No. 5222 of 2007 has become infructuous and the same is disposed of accordingly. Appeal and application dismissed.