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2016 DIGILAW 998 (CAL)

State Bank of India v. Md. Zubair

2016-12-12

ISHAN CHANDRA DAS, JYOTIRMAY BHATTACHARYA

body2016
JUDGMENT : Jyotirmay Bhattacharya, J. 1. This First Miscellaneous Appeal is directed against an order being no. 2 dated 4th August, 2016 passed by the learned Judge, 13th Bench, City Civil Court at Calcutta, in Title Suit No. 988 of 2016 at the instance of the defendant/appellant. 2. By the impugned order, an Advocate Receiver was appointed by the learned court below to take possession of the vehicle bearing Registration No. WB 11B 8697, Engine No. 11-L 84032091 and Chasis No. MAT 448030 B7P 53726 lying in the custody of the defendant bank having its office at 1, Strand Road, Kolkata. The defendant was directed to furnish the detailed statement of the outstanding dues within 7 days from the date of receiving the order to the plaintiff, out of which 50% was directed to be paid by the plaintiff to the defendant within 15 days therefrom, failing which, the ad-interim order will stand vacated. By the said order, the plaintiff was also directed to go on paying balance outstanding dues in three equal monthly installments from the date of receiving the vehicle. The Receiver shall not make over possession of the vehicle unless 50% of the outstanding dues is being paid by the plaintiff to the defendant. It was also directed in the said order that the said vehicle shall be under the control and supervision of the Receiver and/or his/her authorised agent, but the vehicle will be plied by the plaintiff, with a rider that incase the defendant resists the Receiver and/or his/her authorised agent from taking over possession of the vehicle, the Receiver may take police help for taking over possession of the said vehicle as Special Officer of the Court. The defendant was directed to show-cause against the plaintiff's said application for appointment of Receiver. The said application for appointment of Receiver was made returnable on 15th November, 2016. 3. The legality of the said order is under challenge in this appeal at the instance of the defendant bank. 4. After the said appeal was admitted for hearing under the provision of Order 41 Rule 11 of the Code of Civil Procedure on 29th September, 2016 we passed an interim order by restraining the respondent and the Receiver from transferring the vehicle and/or creating any third party interest therein till 8th November, 2016 or until further order whichever is earlier. 5. 5. Today at the time when the application for interim injunction was taken up for hearing, we are invited by the learned counsel appearing for the parties to dispose of the appeal itself on merit. We are also informed by the learned counsel appearing for the parties that the materials which are necessary for disposal of the appeal are all annexed to the application for interim injunction. 6. Accordingly, we have decided to dispose of the appeal itself on merit by dispensing with the requirement of filing paper books in this appeal. 7. Mr. Banerjee, learned advocate, appearing for the appellant has drawn our attention to the suppression of some material facts which the plaintiff made while approaching the learned Trial Court seeking appointment of ad-interim Receiver over the vehicle. It is brought to our notice that prior to filing of the present suit, in which the ad-interim Receiver was appointed by the learned Trial Court, the plaintiff filed a suit seeking injunction for restraining the defendant bank from taking over forcible possession of the vehicle from the custody of the plaintiff therein. 8. Admittedly, there was a loan transaction. The plaintiff took a loan from the defendant bank for purchasing the vehicle. It is also an admitted position that the defendant failed to pay the monthly installments towards the loan which was taken by him from the bank for purchasing the said vehicle. Under such circumstances, the bank was trying to take over possession of the vehicle from the custody of the plaintiff. 9. How far the bank being the financier can take over forcible possession of the vehicle from his borrower is a debatable issue. However, we do not find any necessity for allowing the parties to address us on the said issue as fact remains that the bank ultimately seized the vehicle from the custody of the plaintiff and the legality of taking over possession of the said vehicle by the bank is presently not under challenge before us. 10. The plaintiff/respondent contends that the possession of the said vehicle was taken by the bank in violation of the order of injunction passed by the learned Trial Court in the earlier suit filed by the plaintiff. 11. The appellant bank disputes such contention of the plaintiff/ respondent. 10. The plaintiff/respondent contends that the possession of the said vehicle was taken by the bank in violation of the order of injunction passed by the learned Trial Court in the earlier suit filed by the plaintiff. 11. The appellant bank disputes such contention of the plaintiff/ respondent. It is contended by the appellant bank that the interim order of injunction which was passed by the learned Trial Court in the first suit lost its force as the defendant defaulted in payment of installments in terms of the conditional order passed by the learned Trial Court. 12. Be that as it may, whether the defendant has taken over possession of the said vehicle in violation of the Court's order of injunction or not, is not an issue before us in this appeal. As such, we do not feel it necessary to consider such submission of the learned advocates of the parties as mentioned above. 13. Fact remains that possession of the vehicle was taken by the bank from the custody of the plaintiff/respondent. 14. In our view, when the second suit was filed, the plaintiff/respondent should have disclosed the facts regarding filing of the earlier suit and the orders passed in connection therewith because those facts would have a relevant consideration for passing an ad-interim order of Receiver. If the plaintiff after obtaining an injunction fails to comply with the conditions imposed in the order, then plaintiff cannot complain about any default on the part of the defendant bank, as he himself committed a default in complying with the order of the Court. 15. That apart, as on today, a sum of Rs. 12,38,549/- remains due and payable by the plaintiff to the said bank. Statement of accounts has been supplied to the learned advocate-on-record of the plaintiff/appellant on 28th November, 2016. 16. Though the plaintiff himself knew that he did not pay the EMIs towards the said loan and as a result some amount is payable by him, still then, he did not pay 50% of the total dues in terms of the impugned order passed by the learned Trial Judge till today. If 28th November, 2016 can be accepted as a date when the accounts was supplied to the plaintiff, then as per the impugned order the last date for payment of such 50% dues will be 13th December, 2016. 17. If 28th November, 2016 can be accepted as a date when the accounts was supplied to the plaintiff, then as per the impugned order the last date for payment of such 50% dues will be 13th December, 2016. 17. Since 13th being bank holiday, we make it clear that in the event 50% of the dues is not paid by the plaintiff/respondent to the bank by 14th December, 2016; the Receiver will make over the possession of the vehicle of the plaintiff to the bank on the next following date, i.e. 15th December, 2016. 18. It is also clarified that in the event the 50% of the dues is paid by the plaintiff to the bank by 14th December, 2016; the Receiver will make over the possession of the vehicle to the plaintiff for plying the vehicle by the plaintiff under the supervision of the Receiver, subject to payment of the three installments per month, as provided in the impugned order. 19. It is, further clarified that in default of payment of any of the installments granted by the learned Trial Court in the impugned order, the Receiver will immediately take over possession of the vehicle from the custody of the plaintiff and will deliver the same to the bank/appellant. 20. The Receiver and the plaintiff/respondent are restrained from transferring the said vehicle and/or creating any third party interest therein until the entire dues are liquidated and/or the suit is disposed of whichever is earlier. 21. The appeal and the application are disposed of.