D. v. Nagusah VS Sriram Transport Finance Company Ltd, Chennai
2012-04-10
G.RAJASURIA
body2012
DigiLaw.ai
Judgment :- 1. Animadverting upon the order dated 29.11.2010 passed by the learned Additional District Munsif, Kancheepuram in I.A.No.772 of 2010 in O.S.No.152 of 2010, this civil revision petition is focussed. 2. The parties are referred to hereunder according to their litigative status and ranking before the lower Court. 3. A resume of facts absolutely necessary and germane for the disposal of this revision would run thus: The revision petitioner herein filed the suit seeking the following reliefs: "(a) To restrain the defendants, their men and agents, from in any way seizing the vehicle more fully described in the schedule below on the basis of the illegal and invalid demand notice dated 20.2.2010 and thereby enforcing the same illegally; (b) to direct the defendants to pay costs of this suit." (extracted as such) 4. The respondent/D2 on receipt of summons, filed I.A.No.772 of 2010 under Section 8 of the Arbitration and Conciliation Act for getting the matter referred to arbitration and for the dismissal of the suit. The said I.A. was ordered after hearing both sides and consequently the suit was dismissed. As against the said order in the I.A.No.772 of 2010, this revision has been filed by the plaintiff on various grounds. 5. The learned counsel for the petitioner placing reliance on the grounds of appeal, would submit that as per Section 9 of the Arbitration and Conciliation Act, the Civil Court has got the power to grant injunction, even if the matter has to be referred to arbitration. There is every likelihood of D2 seizing the car of the plaintiff forcibly under the pretext of recovering the dues payable by the plaintiff to D2. 6. Whereas, the learned counsel Mr.B.Ashok Kumar would represent that he is only representing the learned counsel on record for D2. 7. Be that as it may, now the point for consideration is as to whether the lower Court was justified in referring the matter to arbitration under Section 8 of the Arbitration and Conciliation Act and in dismissing the suit? 8. Absolutely there could be no objection for referring the matter to arbitration as per Section 8 of the Act by the Civil Court, because indubitably and indisputably in the contract which emerged between the plaintiff and D2, there was an arbitration clause. As such in this revision, the plaintiff cannot challenge the jurisdiction of the Court in referring the matter to arbitration.
As such in this revision, the plaintiff cannot challenge the jurisdiction of the Court in referring the matter to arbitration. 9. The next pertinent question arises is as to whether the plaintiff should be left high and dry in respect of the prayer for injunction. In this connection, I would like to hark back to the decision of the Hon'ble Apex Court reported in (2012) 1 SCC 1 [Citicorp Maruti Finance Limited v. S.Vijayalaxmi]; certain excerpts from it would run thus: "21. It was submitted that Reserve Bank of India had formulated operational guidelines for adoption by all commercial banks. Pursuant to the guidelines of July 2009, relating to debt collection standards in India, Citibank had updated its code for collection of dues and repossession of security. It was submitted that the said guidelines were detailed and expansive and attempted to cover all the shortcomings in the earlier guidelines in order to ensure that no force was used for the purpose of effecting recovery of the dues. ........... 26. Since during the pendency of the special leave petitions before this Court, the appellant had complied with the orders of the District Forum and the National Commission had already set aside the punitive damages imposed by the State Commission, the reliefs prayed for on behalf of the appellant had been rendered ineffective and the submissions were, therefore, channelled towards the question of whether the for a below were right in holding that the vehicles had been illegally and/or wrongfully recovered by the use of force from the loanees. The aforesaid question has since been settled by several decisions of this Court and in particular in the decision rendered in ICICI Bank Ltd. v. Prakash Kaur (2007) 2 SCC 711 . It is not, therefore, necessary for us to go into the said question all over again and we reiterate the earlier view taken that even in case of mortgaged goods subject to hire-purchase agreements, the recovery process has to be in accordance with law and the recovery process referred to in the agreements also contemplates such recovery to be effected by due process of law and not by use of force." 10. It is explicitly clear that the Hon'ble Apex Court mandated that financiers like D2 are not expected to forcibly seize the vehicle concerned from the defaulting debtor of their own accord. They should resort to the process of law.
It is explicitly clear that the Hon'ble Apex Court mandated that financiers like D2 are not expected to forcibly seize the vehicle concerned from the defaulting debtor of their own accord. They should resort to the process of law. Law enables such creditors to approach the Court and get an Advocate Commissioner appointed for seizing the vehicle and that is being followed day in and day out by various financial institutions. In such a case, I do not think that D2 could carve out an exception. As such, with this above direction and observation, this civil revision petition is disposed of. No costs. Consequently, connected miscellaneous petitions are closed.