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/