{"id":227289,"date":"2010-01-07T00:00:00","date_gmt":"2010-01-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/r-ismath-batcha-vs-the-superintending-engineer-on-7-january-2010"},"modified":"2018-05-11T06:08:49","modified_gmt":"2018-05-11T00:38:49","slug":"r-ismath-batcha-vs-the-superintending-engineer-on-7-january-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/r-ismath-batcha-vs-the-superintending-engineer-on-7-january-2010","title":{"rendered":"R.Ismath Batcha vs The Superintending Engineer on 7 January, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
R.Ismath Batcha vs The Superintending Engineer on 7 January, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATE: 07\/01\/2010\n\nCORAM\nTHE HONOURABLE MR.JUSTICE S.RAJESWARAN\n\nW.P(MD)No.10983 of 2009\nand\nM.P.(MD) No.1 of 2009\n\nR.Ismath Batcha\t\t\t\t\t.. Petitioner\n\nVs\n\n1.The Superintending Engineer,\n   Thanjavur District.\n\n2.The Inspector of Police,\n   Ayyampettai Police Station,\n   Thanjavur.\n\n3.M\/s.Indusind Bank Ltd,\n   2nd Floor, Nallaiya Complex,\n   No.70, Srinivasan Pillai Road,\n   Thanjavur.\n\n4.The Manager,\n   M\/s.Ashok Leyland Finance,\n   Thanjavur.\t\t\t\t\t\t\t.. Respondents\n\n\nPrayer\n\nWrit Petition filed under Article 226 of the Constitution of India,\nseeking for a Writ of Mandamus, directing the respondents to recover the TATA\nACE G Goods Carrier Engine No.2751D105HRZS4 2567 Chasis No.445051HRZV42582 from\nthe illegal custody of the third respondent forthwith.\n\n!For Petitioner\t   ... \tMr.B.Jameel Arasu\n^For Respondents\n  R1 & R2\t   ... \tMr.S.C.Herold Singh\n\t\t\tGovernment Advocate\n    R3\t\t   ...\tMr.B.Prasanna Vinoth\n\n    R4\t\t   ...\tNo appearance\n\t\t\t\n\t\t * * * * *\n:ORDER\n<\/pre>\n
\t  The writ petition has been filed by the petitioner for Mandamus
\ndirecting the respondents to recover the TATA ACE Carrier Engine chassis
\nNo.445051HRZV42582 from the illegal custody of the third respondent forthwith.\n<\/p>\n
\t2. The case of the petitioner is that he obtained a vehicle loan from the
\nthird respondent through its agent Ashok Leyland Finance at Thanjavur on
\n22.10.2008 vide loan agreement No.TOAA0034 for Rs.2,32,000\/-.  The loan was
\npayable in 47 equal monthly installments.  The petitioner has been using the
\nvehicle on hire purchase basis for carrying loads and remitting the monthly
\ninstallments to the third respondent from 22.10.2008 regularly.  During the
\nmonth of April 2009 because of the recession in the market and the poor business
\nconditions he was unable to pay one installment in May 2009.  While so, on
\n12.05.2009 for the non-payment of the monthly installment of one month i.e., May
\n2009, the 4th respondent who is the agent of the third respondent, at the
\ninstance of the third respondent, without any prior notice seized the
\npetitioner’s vehicle.  On account of that illegal seizure the petitioner has
\nbeen deprived of the income from the vehicle and consequently he was not able to
\npay any amount to the bank.  The petitioner was not served with any notice and
\nall of a sudden few men came and took away the vehicle under threat. Thus the
\nseizure of the vehicle by the respondents 3 and 4 is illegal and unlawful.  The
\npetitioner’s request to the respondents 3 and 4 to return the vehicle was not
\nconsidered by them.  Consequent upon the seizure in May 2009, the respondents 3
\nand 4 are estopped from claiming any amount of installment from the month of
\nJune 2009 from the petitioner.  The petitioner’s request to the third respondent
\nfor acceptance of the arrears together with the interest was not acceded to.  He
\nalso gave a criminal complaint to respondents 1 and 2 about the illegal seizure
\nand they have also not chosen to register the complaint.  Hence the above writ
\npetition for the aforesaid prayer.\n<\/p>\n
\t3. Notice was ordered by this Court on 29.10.2009 and the respondents have
\nentered appearance through their counsel.\n<\/p>\n
\t4. I have heard the learned counsel for the petitioner and the learned
\nGovernment Advocate appearing for the respondents 1 and 2 and the learned
\ncounsel appearing for the third respondent and fourth respondent.  I have also
\ngone through the documents available on record including the counter affidavit
\nby the third respondent on behalf of the 4th respondent.\n<\/p>\n
\t5. The learned counsel appearing for the petitioner would submit that for
\nthe non payment of one installment of the loan amount to the respondent bank,
\nthe respondent bank with the help of the 4th respondent has taken possession of
\nthe vehicle from the petitioner.  On account of that the petitioner was not only
\ndeprived of his regular income, but also not able to pay the installments
\nregularly to the bank.  Therefore the default in making further payments cannot
\nbe put against the petitioner as the vehicle is not made available to the
\npetitioner to earn money.  The learned counsel for the petitioner in support of
\nhis submission relied on the judgment of the Hon’ble Supreme Court reported in
\n2007 (2) CTC 334 (Manager, ICICI Bank Ltd., Vs. Prakash Kaur and others) and
\nalso the unreported judgment of this Court passed on 11.03.2009 in W.P.No.1773
\nof 2009 (A.Moses Vs. The Branch Manager, ICICI Bank, Tirunelveli) and another
\nJudgment dated 06.06.2009 made in W.P.No.3026 of 2007 (S.Ovuraj Vs. The Manager,
\nState Bank of India, Vilathikulam, Tuticorin District and another)<\/p>\n
\t6. Per contra, the learned counsel for the respondents 3 and 4 while
\nreiterating the averments made in the counter affidavit would submit that the
\npetitioner has entered into a hypothecation agreement vide contract No.TOOA00374
\nand agreed to pay the monthly installments at the rate of Rs.7,750\/-, commencing
\nfrom 27.10.2008 to 21.08.2012 in 47 equal installments, for the loan availed by
\nhim at Rs.2,32,000\/-.  The petitioner has undertaken to co-operate with the
\ndealer who sold the vehicle to register the vehicle.  But the petitioner did not
\nco-operate with the dealer for the registration of the vehicle till the vehicle
\nwas surrendered by the petitioner.  Further the petitioner was not keen to pay
\nthe installments in time from the commencement of the repayment period.  From
\nthe second installment onwards the petitioner defaulted and fell in arrears.
\nOut of seven installments due till vehicle was surrendered by the petitioner,
\nthe petitioner had paid only four installments that too belatedly.  The
\nreminders sent by the bank were neglected and ignored by the petitioner.  On
\n05.03.2009, the petitioner gave an undertaking that he would remit the pending
\ninstallments on or before 11.03.2009 and in default the petitioner would not
\nstand in the way of taking any steps by the bank as per the terms of the
\nagreement.  As the petitioner did not come forward to repay the installments as
\nper the agreement and the undertaking given on 12.05.2009, the officials of the
\nrespondents 3 and 4 demanded the petitioner for repayment or handing over the
\nvehicle to the bank.  But the petitioner instead of paying the arrears came
\nforward and handed over the vehicle to the officials of the bank stating that he
\nwould get it back after clearing all the dues.  Thus, the repossession of the
\nvehicle in question was in terms of the hypothecation agreement entered into
\nbetween the petitioner and the Bank.  In this case, he adds that the vehicle was
\nhanded over by him.  After waiting for more than 1-1\/2 months from the date of
\nsurrendering the vehicle, the respondent issued a final reminder notice on
\n22.06.2009 calling upon the petitioner to clear the entire dues within seven
\ndays from the receipt of the notice or else the bank would be constrained to
\ntake further action by selling the vehicle as per the terms of the agreement.
\nHe submits that there was absolutely no deployment of any rowdy element or
\ngoondas by the respondents to take possession of the vehicle as alleged by the
\npetitioner.  Therefore, the allegations made against the bank by the petitioner
\nin this regard are baseless.  In this case, he adds that the petitioner after
\nhaving not complied with the terms of the agreement, and surrendering the
\nvehicle by himself, has come forward to this Court with totally a false case so
\nas to mislead the court and get an order.  Hence the learned counsel for the
\nbank prays for dismissal of the writ petition as devoid of merits<\/p>\n
\t7. I have heard the rival submissions carefully with regard to the facts
\nand citations.\n<\/p>\n
\t8. The learned counsel for the petitioner submits that repossession of the
\nvehicle with the help of the rowdy elements by the respondent bank is illegal
\nand it is contrary to the principle laid down by the Hon’ble Supreme Court and
\nalso by this Court in the above referred judgments.  He submits that the bank
\nhas no authority to take possession of the vehicle by force illegally and
\nwithout adhering to the norms.  Therefore the vehicle must be handed over to the
\npetitioner forthwith.\n<\/p>\n
\t9. He adds that engagement of the 4th respondent to repossess the vehicle
\nis totally contrary to the agreed terms and also to the clear dictum laid down
\nby the Hon’ble Supreme Court as well as this Court in such matters.\n<\/p>\n
\t10. I am unable to accept the submissions made on the side of the
\npetitioner<\/p>\n
\t11. In this connection it is relevant to refer to the hypothecation
\nagreement entered into by the petitioner with the bank, with particular
\nreference to Clause 15(2) of the hypothecation agreement which is extracted
\nbelow:\n<\/p>\n
“Upon occurrence of an Event of Default, the Borrower shall be bound to return
\nthe Asset of the Lender at such location, as the Lender may designate, in the
\nsme condition in which it was originally delivered to the Borrower, ordinary
\nwear and tear excepted.  The Borrower shall not prevent or obstruct the Lender
\nform taking possession of the Asset.  For this purpose the Borrower Covenants
\nand confirms that the Lender’s authorized representation, servants, officers and
\nagents will have unrestricted rights of entry and shall be entitled to
\nforthwith, or at anytime without notice to the Borrower, to enter upon the
\npremises, or garage or godown where the vehicle(s) are lying or kept, and to
\ntake possession or recover and receive the same and if necessary to break open
\nany such place.  The Lender will be well within its right to use tow-van or any
\ncarrier to carry away the Asset.  The Borrower shall be liable to pay any towing
\ncharges and other such expenses incurred by the Lender for taking the possession
\nof the Asset, cost of safe keeping of the Asset and for its sale etc.  If the
\nLender takes possession of the Hypothecated Asset, the Lender shall not be
\nresponsible for any loss or deterioration of or damage to the Hypothecated Asset
\nwhether by theft, fire, rain, flood, earthquake, lightning, accident or anyother
\ncause whatsoever”\n<\/p>\n
\t12. Pursuant to this categorical clause contained in the agreement entered
\ninto by the bank with the petitioner only and on the default committed by the
\npetitioner, the respondent bank said to have exercised their rights and
\nrepossessed the vehicle.  Further, according to the Bank, repossession is being
\ndone only with the help of the 4th respondent who is the agent.  But here,  the
\nspecific case of the respondent bank is that on the request made by the officers
\nof the Bank either to clear the arrears or hand over the vehicle the petitioner
\nvoluntarily surrendered the vehicle with an undertaking that he would clear the
\narrears and take the vehicle. Thus there was no deployment of any rowdy element
\naccording to the Bank and no force was used and the allegations made in this
\nregard are false, baseless and misleading.\n<\/p>\n
\t13. Further, the case of the petitioner is that the 4th respondent who is
\nthe agent of the 3rd respondent seized the vehicle without any notice or
\nintimation.  According to the petitioner, the vehicle was seized with the help
\nof rowdy elements illegally and unlawfully.  Whereas the case of the respondent
\nBank is that invoking clause 15(2) of the Hypothecation Agreement, they wanted
\nto seize the vehicle, but the petitioner himself handed over the vehicle to the
\nbank officials stating that he would get it back after clearing all dues.  Thus,
\ndisputed questions of fact are arising for consideration in the above matter and
\nit is settled law that this Court cannot go into those disputed facts while
\nexercising its powers under Article 226 of the Constitution of India.\n<\/p>\n
\t14. Moreover the judgments referred to by the learned counsel for the
\npetitioner, in my considered view would not be applicable to the facts of the
\npresent case, particularly in the matter of repossessing the vehicle as per the
\nterms of the hypothecation agreement.  Only collection of money\/arrears of loan
\namount by the agents\/muscle men was deprecated by the Hon’ble Supreme Court.  It
\ncannot be said that repossessing the vehicle under the terms of the
\nhypothecation agreement would also be covered by the orders passed by the
\nHon’ble Supreme Court.  As per the agreed terms the petitioner is duty bound to
\nhand over the vehicle in the event of not being able to pay the installments.
\nTherefore there is no question of the petitioner having a grievance, more
\nparticularly, after surrendering the vehicle by himself to the respondent bank.\n<\/p>\n
\t15. In 2007(2) CTC 334 (Manager, I.C.I.C.I Bank, v. Prakash Kaur), the
\nHonourable Supreme Court<\/a> while issuing guidelines to the Banks in the manner of
\nrecovery of loan and seizure of vehicles, have clearly observed that employing
\nrecovery agents\/Goondas for recovery of loan and seizure of vehicles by using
\nforce and abusive language are deprecated. They further added that recovery
\nshould be done only through legal means by established procedures as per law.
\nFurther, a reading of the judgment in entirety would show that the Hon’ble
\nSupreme Court has only condemned the seizure of vehicles in public places
\ndeliberately as that would certainly cause embarrassment to the borrower and it
\ncould be done only by licensed recovery agent. They have also suggested that
\nBanks to employ their own personnel and depute them for recovery of
\noutstandings. While suggesting the Additional inputs, the Honourable Supreme
\nCourt has reiterated that the persons entrusted with the job of recovery shall
\nnot resort to violence or force when they are in the process of recovery of the
\ndues. Further, they added that while the fraudulent defaulters can be dealt with
\nby taking the police help for such action, it is only when law is taken into the
\nhands of the so called recovery agents, who are appointed on contract basis, the
\nissue gets aggravated.\n<\/p>\n
\t16. Therefore, the dictum of the Honourable Supreme Court and the
\nguidelines issued by the Honourable Supreme Court are very clear that recovery
\nof loan or seizure of vehicles could be done only through the legal means and
\nthe Banks cannot employ Goondas to take possession by force.\n<\/p>\n
\t17. Admittedly, in this case, the Bank in terms of the hypothecation
\nagreement entered into by the petitioner with the Bank, appears to have taken
\naction for recovery and seizure of vehicle.  According to the bank, there was no
\ndeployment of any any rowdy element or illegal force while seizing the vehicle
\nused. Further, it is stated by Bank that the petitioner herein came forward to
\nsurrender the vehicle by himself on the notice issued for clearing the arrears.
\nThe two unreported judgments of this Court, cited supra, are in line with the
\ndictum laid down by the Hon’ble Supreme Court in 2007 (2) CTC 345 (Thirivedhi
\nChannaiah Vs. Gudipudi Venkata Subba Rao (D) By Lrs. and others). Therefore, in
\nmy considered view, the judgments referred to by the learned counsel appearing
\nfor the petitioner are not applicable to the facts of the present case and they
\nare clearly distinguishable on facts and law.\n<\/p>\n
\t18.  Moreover in this case, it is stated that the respondent bank invoked
\nthe arbitration clause and filed arbitration proceedings in ACP.No.360\/09and
\nnominated one Thiru.D.Saravanan as the arbitrator as per Clause 23.0(a) of the
\nhypothecation agreement.  The notice sent by the said arbitrator to the
\npetitioner did not evoke any response from the petitioner, which resulted in an
\nexparte award already passed by the said arbitrator and consequently the
\nrespondent bank has also said to have sold the vehicle to the third parties.\n<\/p>\n
\t19. Therefore taking into consideration the totality of facts and
\ncircumstances, one would see that this issue in hand is purely a matter in the
\nrealm of contract entered between a private bank and the petitioner, and the
\naction taken by the bank is only in pursuant to the agreed terms.  The
\npetitioner having not appeared before the arbitrator and allowed the vehicle to
\nbe sold in an auction pursuant to the award passed thereon, cannot maintain this
\nwrit petition at all before this Court.\n<\/p>\n
\t20. In the result, I do not find any merits in the writ petition and the
\nsame is dismissed as devoid of merits.  No costs.  Consequently, connected
\nmiscellaneous petition is also closed.\n<\/p>\n
cs<\/p>\n
To<\/p>\n
1.The Superintending Engineer,
\n   Thanjavur District.\n<\/p>\n
2.The Inspector of Police,
\n   Ayyampettai Police Station,
\n   Thanjavur.\n<\/p>\n
3.M\/s.Indusind Bank Ltd,
\n   2nd Floor, Nallaiya Complex,
\n   No.70, Srinivasan Pillai Road,
\n   Thanjavur.\n<\/p>\n
4.The Manager,
\n   M\/s.Ashok Leyland Finance,
\n   Thanjavur.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court R.Ismath Batcha vs The Superintending Engineer on 7 January, 2010 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATE: 07\/01\/2010 CORAM THE HONOURABLE MR.JUSTICE S.RAJESWARAN W.P(MD)No.10983 of 2009 and M.P.(MD) No.1 of 2009 R.Ismath Batcha .. Petitioner Vs 1.The Superintending Engineer, Thanjavur District. 2.The Inspector of Police, Ayyampettai Police Station, Thanjavur. 3.M\/s.Indusind […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-227289","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nR.Ismath Batcha vs The Superintending Engineer on 7 January, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/r-ismath-batcha-vs-the-superintending-engineer-on-7-january-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"R.Ismath Batcha vs The Superintending Engineer on 7 January, 2010 - 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