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2012 DIGILAW 335 (UTT)

INDIA BULLS v. KEDAR DUTT BHATT

2012-06-28

SERVESH KUMAR GUPTA

body2012
Judgment Hon’ble Servesh Kumar Gupta, J. By means of this petition, moved under Section 482 Cr.P.C., a prayer has been made to quash the proceedings of criminal complaint case no.899 of 2008, Kedar Dutt Bhatt, Vs. Manager M/s Indiabulls and another, and the order of cognizance dated 24.06.2009 passed thereupon by learned Judicial Magistrate, Haldwani, District Nainital. 2. Having heard learned counsel for the parties, it transpires that the private respondent and petitioner M/s India Bulls Company, through its functionaries, entered into an agreement on 16.04.2007 whereby the said company sanctioned a loan of Rs.3,20,842/- for purchasing a ‘Tata Truck’ on hire-purchase basis. Some money was also subscribed by the respondent in purchase of the Truck and he furnished his sureties also for ensuring the repayment of loan. The Equated Monthly Installment (EMI) of Rs.10,830/- was settled against the captioned loan. The truck was purchased and given in the custody of the respondent, who got it plied on the road to earn. 3. After a couple of months, there was a default in the payment of E.M.I. on the part of the respondent towards company and a total default of Rs.97,470/- became due to be paid. So, the company sent a loan recall notice on 30.8.2007 and the respondent, after receiving notice of the company, paid Rs.40,000/- and requested the company to defer the recovery proceedings against him as there was a downfall in the transport business at the relevant time but the company did not pay any heed and sent its hired muscleman and, accordingly, the vehicle was re-possessed by the company on 30.1.2008. 4. After having the vehicle re-possessed, the company sent a Pre-Sale Notice on 2.2.2008 asking the respondent to settle the scores. But since the respondent could not satisfy the demand of the company, the truck was after all sold and the company recovered its dues from the sale proceeds. 5. The respondent filed a consumer complaint case no.77 of 2009 before the Consumer Disputes Redressal Forum, Nainital but the said complaint was dismissed by the Forum by observing that since the vehicle was delivered by the financer under the hire purchase agreement, thus, the same was not covered under the Consumer Protection Act. 6. 5. The respondent filed a consumer complaint case no.77 of 2009 before the Consumer Disputes Redressal Forum, Nainital but the said complaint was dismissed by the Forum by observing that since the vehicle was delivered by the financer under the hire purchase agreement, thus, the same was not covered under the Consumer Protection Act. 6. The respondent, before filing the aforesaid complaint, also filed a criminal complaint case against the Manager, M/s India Bulls at its headquarters Gurgaon (Haryana) as well as against its Manager, posted at its local office at Haldwani, District Nainital. The facts therein were that on 30.1.2008 at about 11 PM, 10-12 unknown armed persons came to the residence of complainant, they beaten him bitterly and also intimidated him with a threat to kill. At the strength of intimidation and beating, all those persons, at the behest of both the Managers, snatched the Truck from the possession of respondent and carried it away. The complainant, in the said complaint, got himself examined u/s 200 Cr.P.C., whereas his two witnesses, Shiv Dutt Bhatt and Balam Singh were examined u/s 202 Cr.P.C. Learned Magistrate, having gone through the contents of the complainant, as also the statements of the complainant and that of his witnesses, passed the impugned order of cognizance, asking both the petitioners to stand trial for the offences of Section 392, 323 and 506 IPC. Learned counsel for the petitioners, in support of its case, has relied upon the following two precedents of Hon’ble Apex Court: - 1. “Charanjit Singh Chadha and others Vs. Sudhir Mehra, reported in VI (2001) SLT 312 2. ICICI Bank Ltd. Vs. Prakash Kaur and others, reported in (2007) 2 SCC 711” In the first case (Charanjit Singh Chadha), the financer also forcibly took away the vehicle from the shop of motor mechanic where it was left by the debtor for repairing. Hon’ble Apex Court quashed the complaint against the financer on the basis that the hire purchase agreement clearly provided for repossession of the vehicle by the owner. Hon’ble Apex Court quashed the complaint against the financer on the basis that the hire purchase agreement clearly provided for repossession of the vehicle by the owner. In the second case (ICICI Bank), Hon’ble Apex Court though disgusted the existing system of engaging hooligans/gangsters on contract for recovery of dues by banks, but by reconciliation, the vehicle was again handed over in the possession of debtor on some partial payment, directing the debtor to pay three consecutive installments regularly otherwise the creditor was left at liberty to recover the vehicle. 7. On the other hand, learned counsel for the respondent has relied upon a latest Full Bench precedent of Apex Court in the case of “Citicorp Maruti Finance Ltd. Vs. S. Vijayalaxmi, reported in (2012) 1 SCC 1” wherein it was held that recovery of mortgaged goods under hire-purchase agreements cannot be allowed by use of force by hirer, inasmuch as, the same has to be carried out in accordance with law and not by use of force. It was further held that hirer is not entitled to take back possession of mortgaged vehicle or goods using force for default of payment, even though hirer continues to be owner of goods as long as ownership is not transferred to purchaser. The Hon’ble Apex Court also adhered to the principle laid down in the case of ICICI Bank (Supra), and also expressed the guidelines issued by Reserve Bank of India in these affairs. 8. Since the Apex Court, in the case of ICICI Bank (Supra), clearly deprecated the practice of snatching the vehicle under hire-purchase agreement, notwithstanding the default of debtor and the continuance of the ownership of the creditor, as such the act and conduct of the company in the instance case, cannot be endorsed by this Court also. More so, when the Full Bench in its latest judgment of Citicorp Maruti Finance Ltd. (Supra) has further reiterated its earlier stand as well as the guidelines issued by the Reserve Bank of India in such matters. 9. Now, so far as sub-clause 8 of Clause ‘H’ of the Hire Purchase Agreement is concerned, which provides right to the Lender to take possession of the vehicle, irrespective of whether the loan has been recalled, the same appears to be a whimsical one and cannot be read contrary to the guidelines of Hon’ble Apex Court. 9. Now, so far as sub-clause 8 of Clause ‘H’ of the Hire Purchase Agreement is concerned, which provides right to the Lender to take possession of the vehicle, irrespective of whether the loan has been recalled, the same appears to be a whimsical one and cannot be read contrary to the guidelines of Hon’ble Apex Court. Moreover, having a look upon the said agreement, it is abundantly clear that the same contains a number of clauses drafted very carefully and in an articulate fashion, which cannot be understood by a common prudent man. If an illiterate, or even less literate person comes to the financer/creditor, then he will have to engage a lawyer after making payment of hefty fee so as to understand its clear purport. Rather, all these clauses are in fact in favour of the creditor. 10. Apart from above, Clause ‘K’ of the said agreement also provides for the arbitration between the parties in the eventuality of any dispute or difference, however by reading carefully the said clause, it transpires that the same again has been drafted in a biased manner, leaving no discretion to the respondent of his own. 11. Thus, in view of what has been stated above, the Court feels that the petition is quite merit-less and liable to be dismissed. Petition is, accordingly, dismissed. Interim order dated 18.10.2011 passed by this Court is hereby vacated. Inform the court below to proceed ahead with the trial.