High Court Kerala High Court

Sabu vs Assistant Commissioner on 13 August, 2008

Kerala High Court
Sabu vs Assistant Commissioner on 13 August, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 21657 of 2008(C)


1. SABU, 40 YEARS, R/A.D3, KESTON TOWER
                      ...  Petitioner

                        Vs



1. ASSISTANT COMMISSIONER, CANTONMENT
                       ...       Respondent

2. VENKITESH GANAPATHY, DEPUTY MANAGER,

3. BIJU JOHNS, SENIOR MANAGER,

                For Petitioner  :SRI.M.R.SASITH

                For Respondent  :SRI.SOORAJ T.ELENJICKAL

The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MRS. Justice M.C.HARI RANI

 Dated :13/08/2008

 O R D E R
                      K.BALAKRISHNAN NAIR &

                          M.C.HARI RANI, JJ.

                   -----------------------------------------

                     W.P.(C) NO. 21657 OF 2008-C

                   -----------------------------------------

                        Dated 13th August, 2008.

                               JUDGMENT

Balakrishnan Nair, J.

The petitioner availed a loan from the Thiruvananthapuram

branch of the H.D.F.C. Bank Ltd., for purchasing a Skoda car. He

committed default in paying a few monthly instalments. Though he

was willing to clear the defaulted instalments, the 2nd respondent

moved the criminal court by filing a complaint against him under

Section 138 of the Negotiable Instruments Act. The respondents 2 and

3, who are respectively the Deputy Manager and Senior Manager of the

said Bank, threatened the petitioner that they will take the vehicle by

force, unless he surrenders the same to them. On 13.6.2008, the 2nd

respondent along with five local goondas stopped the petitioner’s

vehicle near Kowdiar and tried to take it by force. Later, on 18.6.2008

the 2nd respondent along with eight goondas, armed with deadly

WPC 21657/2008 2

weapons, stopped the petitioner’s vehicle near Nanthencode. They

threatened to kill the petitioner unless he surrenders the vehicle to the

3rd respondent. Immediately, the petitioner approached the 1st

respondent Assistant Commissioner of Police and requested for police

protection to his life and property. Again, on 9.7.2008, while the

petitioner was returning home, the respondents 2 and 3 along with three

goondas stopped his car at Maruthankuzhi and threatened to kill him,

unless he surrenders the vehicle to them. The petitioner submits, again,

the respondents 2 and 3 along with some musclemen came to his flat

and threatened his wife that they will kill her also. Though the

petitioner approached the 1st respondent by filing a complaint on

9.7.2008, seeking police protection, no effective steps were taken due

to the influence of respondents 2 and 3. Ext.P1 is the said complaint.

The police have registered a crime against respondents 2 and 3, based

on the complaint filed by him. The respondents 2 and 3 have moved

this Court, seeking anticipatory bail, it is submitted. The petitioner

submits, the threat against his life and also to take the vehicle by force

is continuing and therefore, this writ petition is filed, seeking the

WPC 21657/2008 3

following relief:

“(i) issue a writ of mandamus or any other appropriate
writ, order or direction, commanding the 1st respondent to
afford adequate and effective police protection to the life
and property of the petitioner and his family members
from respondents 2 and 3 and their henchmen.”

2. The respondents 2 and 3 have filed a counter affidavit,

denying the allegations against them. It is submitted that the allegation

that they attempted to take forcible repossession of the vehicle is false.

No cause of action has arisen for the petitioner to invoke the extra-

ordinary jurisdiction of this Court. Everything that is narrated in the

petition is only a cock and bull story. The petitioner has failed to pay

the instalments continuously and as on this date, the total amount of

defaulted instalments will come to Rs.1,76,757/-. The cheques issued

by the petitioner for the monthly remittances were dishonoured and

prosecution under Section 138 of the Negotiable Instruments Act has

been launched against him. The petitioner being aware of the legal

steps taken by the Bank to recover the loan amount, has come up with

this petition, making false allegations against the party respondents and

therefore, they pray for dismissal of the writ petition.

WPC 21657/2008 4

3. The learned Government Pleader, upon instructions, submitted

that on the basis of the information lodged by the petitioner, a crime

has been registered against respondents 2 and 3 under Sections 341 and

506 read with Section 34 of the I.P.C., and under Section 27 of the

Arms Act.

4. The learned counsel for the petitioner relied on the decision of

the Apex Court in ICICI Bank Ltd. v. Prakash Kaur [(2007)2 SCC

711] and submitted that the financier cannot resort to strong arm tactics

for recovering the loan amount. He further submitted that the vehicle

purchased under hire-purchase agreement cannot be seized using force.

The financier has to take recourse to the remedies available under law.

The learned counsel also relied on the decision of this Court in

Bhahuleyan v. State of Kerala [2007(4) KLT 402]. In the said

decision also, the employment of musclemen for repossessing the

vehicles covered by hire-purchase agreements was deprecated.

5. The learned counsel for respondents 2 and 3 on the other hand,

submitted that the decision of the Apex Court mentioned above takes

care of the rights of the financier also. Special reference was made to

WPC 21657/2008 5

para 13 thereof. The learned counsel also submitted that this Court

may not exercise its discretionary jurisdiction in favour of the defaulter.

It is further pointed out that the petitioner has remedies available before

the civil court. Therefore, it is unnecessary for this Court to invoke its

discretionary jurisdiction.

6. The contention of the learned counsel for respondents 2 and 3

that the writ petition is not maintainable, has only to be rejected. The

petitioner has approached this Court, alleging inaction from the part of

the police in protecting his life and property. For that the remedy

available under the Code of Civil Procedure is not efficacious. Further,

respondents 2 and 3 have no right or authority to employ strong arm

methods to repossess the vehicle, to recover the loan amount. They

have to respect the law of the land and take recourse to the remedies

available under law. They cannot be a law unto themselves. We

strongly deprecate the strong arm methods employed by the financiers

using musclemen, to recover the loan amounts and repossess the

vehicles. The respondents 2 and 3 submit that in this case they have

not employed such methods to recover the loan amount and they have

WPC 21657/2008 6

no intention to do that. The police have to take effective steps to nip in

the bud the attempts made by new generation banks to recover the loan

amounts using musclemen. Now, they have effective remedies under

law, including those under the provisions of the Securitisation and

Reconstruction of Financial Assets and Enforcement of Security

Interest Act, 2002.

In the result, the Writ Petition is allowed. If the respondents 2

and 3 or the persons engaged by them use strong arm methods to

threaten the petitioner to recover the loan amount, he may inform the

police officers concerned. In that event, they shall take effective steps

to protect his life and property. It is made clear that this judgment will

not affect the right of respondents 2 and 3 to move the civil or criminal

courts for appropriate reliefs.

K.BALAKRISHNAN NAIR, JUDGE.

M.C.HARI RANI, JUDGE.

Nm/