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Orissa High Court · body

2017 DIGILAW 728 (ORI)

Debadutta Mishra v. Reserve Bank of India

2017-07-14

S.K.MISHRA

body2017
ORDER Misc. Case No. 18940 of 2014 14.07.2017 Heard learned Counsel for the petitioners, who are opposite parties in the writ petition and the learned counsel for the petitioner. In this Misc. Case, the Financer operating in the name and style “Hinduja Leyland Finance Limited” has filed an application for modification of the order passed by this Court in WP(C) No. 16915 of 2014 dated 29.09.2014 to the extent of directing the petitioner to close the loan account in the interest of justice. It is borne out from the record that the ground, which has been taken by the Financer is that the petitioner preferred the aforesaid writ petition challenging the action of the opposite party nos. 2 and 3 in seizing the vehicle under hypothecation of the opposite party no. 2. This Court after hearing the parties vide order dated 29.09.2014 was pleased to dispose of the writ petition with directions/liberty to the petitioner to pay four defaulted E.M. Is in two monthly instalments. It is further directed that on payment of the first instalment, the vehicle in question shall be released in favour of the petitioner by the opposite party no.3 that the Financier Company submits that such order was passed by this Court on misrepresentation of the facts by the petitioner and a writ application is not maintainable in view of the embargo contained under various settled principle of law where it is has been held that a writ petition cannot be lie against a private body or company. The applicant has also contended that the petitioner has not come to the Court in clean hands and filed writ application by suppressing material facts. It was contended that the petitioner is a chronic defaulter and despite of several efforts made at the behest of the opposite party nos. 2, 3 and 5, the loan account was not regularized, for which the vehicle was seized by the said opposite parties, in addition, this petitioner, in this Misc. Case pleaded that at present total amount of Rs. 2, 3 and 5, the loan account was not regularized, for which the vehicle was seized by the said opposite parties, in addition, this petitioner, in this Misc. Case pleaded that at present total amount of Rs. 50,501/- is outstanding against the present petitioner and in view of the seizure dated 21.09.2013, the petitioner has filed an I.C.C. No. 207 of 2013 before the learned S.D.J.M., Baripada (now pending before the learned J.M.F.C., Betnoti) for the alleged commission of offence under Sections 392 and 506/34 of the IPC, in which case the cognizance has already been taken and Criminal Revision No. 993 of 2013 is pending before this Court, challenging the order of cognizance. It is therefore contended by the learned counsel for the petitioners in this misc. case that the order be modified to the extent that the petitioner shall close the loan account in the interest of justice. At first the contention raised by the petitioners in misc. case is that application under Article 226 of the Constitution of India is not applicable against the private body or company. However, in reference to Article 226 of the Constitution of India reveals that writ petition can be passed against to any person. The company, being a juridical person, is the person comes within the definition of the said word and a writ application is maintainable against it. Moreover, Financier Company is a non-banking Financial Company and it is indulged in a public duty, under the guidance of the Reserve Bank of India. So, as per the ratio decided by a Division Bench of this Court presided by the Hon’ble Chief Justice B.L. Hansaria in the case of Smt. Bansati Pradhan Vs. State of Orissa and others, 1991 (I) OLR 426 a writ under Section 226 of the Constitution of India is maintainable against the private institutions, if they are carrying out public functions, this Court is of the opinion that a writ petition is maintainable against the Mahindra Finance Company and this question is answered accordingly against the petitioners in the Misc. Case. The second contention is that the petitioners approached the Court by suppressing material facts. However, the petition does not reveal what are the facts that have been suppressed and no material has placed to show that the petitioner has actually suppressed material facts at the time of hearing of the writ petition. Case. The second contention is that the petitioners approached the Court by suppressing material facts. However, the petition does not reveal what are the facts that have been suppressed and no material has placed to show that the petitioner has actually suppressed material facts at the time of hearing of the writ petition. Moreover, it is settled principle of law that bona fide is presumed and mala fide has to be established. In this case, the Finance Company has failed to establish mala fide on the part of the petitioner. Hence, this Court does not accept the second contention. Third condition is that the Finance Company seized the vehicle in pursuance to the hypothecation agreement. The Hon’ble Supreme Court in the case of Citicorp. Maruti Finance Ltd. Vs. S. Vijayalaxmi, reported AIR 2012 SC 509 has held relying upon the earlier reported case of Hon’ble Supreme Court in Manager, ICICI Bank Ltd. Vs. Prakash Kaur and others, AIR (2007) 2 SCC 1349, wherein at paragraph-2, the Hon’ble Supreme Court has held that we all are governed by a rule of law in the country, and that 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. The Banks and Financial Institution cannot also engage its employee to forcibly take possession of the hypothecation vehicle without following procedure established by the law. If any Financial Institution or Bank wants to seize any vehicle then they must follow the procedure established by law. In this case apparently no procedure has been followed by the Finance Company. Keeping in view the aforesaid discussion, this Court is of the opinion that the application for modification of order filed by the Hinduja Leyland Finance Company is devoid of merit and the same is dismissed. Urgent certified copy of this order be granted on proper application. Application dismissed.