JUDGMENT
Abhay M. Naik, J.
1. Facts in short involved herein are that one Mohd. Shameem Khan had purchased a truck (details are not on record) from Randhir Kumar Choudhary who was respondent No. 6 in the revision application decided vide Annexure P4. The consideration of the truck was paid with the aid of finance obtained from Jan Kalyan Shahkari Bank Ltd. (respondent No. 7 herein). The loan was not repaid to the bank by Mohd. Shameem Khan and consequently, the money was directed to be recovered by auction of the said vehicle.
2. It is contended that in a surprisingly shocking manner the truck bearing Registration No. MP-20/G-0232 owned by the petitioner under a valid registration number was put to auction by the Special Recovery Officer (respondent No. 3) and was sold to the respondent Nos. 5 and 6 on 04.10.2001.
3. Case of the petitioner is that she is the registered owner of the truck bearing Registration No. MP-20/G-0232 which was not liable to be auctioned in recovery proceedings against Mohd. Shameem Khan.
4. Shri Singh, learned Counsel, contended that the petitioner was neither the borrower nor the guarantor and the said truck (Registration No. MP-20/ G-0232) was not hypothecated with the co-operative bank in security of the loan obtained by Mohd. Shameem Khan. Accordingly, it is contended that the auction of the said truck is highly illegal, arbitrary and without jurisdiction. Since there was no liability against the petitioner, the aforesaid truck owned exclusively by her as a registered owner was not liable to auction in recovery of amount against Mohd. Shameem Khan.
5. Shri D.D. Bhargava, learned Counsel appearing for respondent Nos. 3 and 7, submitted that the petitioner has already instituted a civil suit which is pending with respect to the vehicle in question. Thus, his respectful contention is that the petitioner may be directed to proceed with the suit and establish the ownership of the vehicle in the civil suit. He, accordingly, prays for dismissal of the writ petition.
6. Shri Singh, learned Counsel appearing for the petitioner, contended that the civil suit has been filed in the year 2006 whereas the present writ petition was submitted in the year 2002. According to Shri Singh, no controversial facts are involved in the matter and the petitioner may not be compelled to continue with the civil suit. According to him, the vehicle bearing Registration No. MP-20/G-0232 was owned by the petitioner exclusively and there was no nexus between borrower and the petitioner with regard to the said vehicle. Thus, it is contended that the said truck was not liable to be auctioned in the recovery proceedings against Mohd. Shameem Khan.
7. Considered the submissions and perused the record.
8. It has been stated on oath that the petitioner is not claiming title of the said truck either from borrower or guarantor. It is equally clear that the respondents have failed to establish that the said truck was ever hypothecated with the co-operative bank in security of the loan stated to have been advanced to Mohd. Shameem Khan for purchase of truck which was altogether different from the truck bearing Registration No. MP-20/G-0232.
9. It may be further found that RTO, Jabalpur vide his order dated 16.07.2002 contained in Annexure P2 has found that the petitioner was not a guarantor in the loan transaction entered into between the co-operative bank and Mohd. Shameem Khan. It was further observed that the petitioner had not created hypothecation of the vehicle in favour of the said co-operative bank. Since the petitipner has not claimed the vehicle bearing Registration No. MP-20/G-0232 from either the borrower or guarantor, the said vehicle was not liable to be auctioned in recovery of the loan against Mohd. Shameem Khan. Similarly, the Divisional Joint Registrar, Co-operative Societies, Mumbai vide his order dated 21.01.2002 contained in Annexure P4 has found in paragraph 4 of his order that it was crystal clear that the said vehicle standing in the name of petitioner was not hypothecated to the co-operative bank. Thus, respondent No. 3 had obviously no power or jurisdiction to auction the said vehicle for making recovery of amount outstanding in the name of Mohd. Shameem Khan. The auction so made in favour of respondent Nos. 5 and 6 who are stated to have purchased the said truck in public auctions is terminated.
10. In the result, I find that the truck bearing Registration No. MP-20/ G-0232 was not owned by the borrower or guarantor and the same was never hypothecated in favour of the co-operative bank. In this view of the matter, respondent No. 3 has committed an illegality in auctioning the said truck. The auction proceedings are, thus, without power/jurisdiction and are accordingly quashed hereby.
11. In the result, this petition is allowed with a direction that respondent Nos. 5 and 6 shall redeliver the possession of the truck bearing Registration No. MP-20/G-0232 to the petitioner within a period of one month from the service of certified copy of this order.
12. As regards the inter se dispute between the respondents, they would be free to avail the appropriate recourse. Since respondent Nos. 3 and 7 did not bother to verify the liability of the truck in question and have caused auction of the same in a highly negligent and irresponsible manner, they are saddled with a cost of Rs. 20,000 which would be payable by them to the petitioner by way of compensation in joint and several manner.
13. It is further directed that respondent Nos. 3 and 7 may recover the entire amount of compensation from the erring respondent after giving him an opportunity of hearing. It is made clear that the petitioner may continue with the civil suit which is already pending for the limited purpose of compensation.
14. Petition, accordingly, stands allowed with a cost of Rs. 5,000, if already certified.