Gujarat High Court
Nitinbhai Ghanshyambhai Mehta vs Daimler Financial Services (Dfs) India ... on 15 March, 2019
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/3295/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3295 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 20277 of 2018
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NITINBHAI GHANSHYAMBHAI MEHTA & 1 other(s)
Versus
DAIMLER FINANCIAL SERVICES (DFS) INDIA PVT. LTD.
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Appearance:
MR B.M. MANGUKIA for the Petitioner(s) No. 1,2 (Absent)
None present for the Petitioner(s) No. 1
MR AMAR BHATT, Learned Advocate for the Respondent in Special Civil
Application No.3295 of 2019.
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CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 15/03/2019
ORAL ORDER
1. These two petitions filed under Article 226 of the Constitution of India are arising out of similar facts and circumstances and hence, the petitions are taken up for joint hearing.
2. Both the petitions are filed against two separate private bank and a private financial service company. Both the petitions pertains to the vehicles belonging to the petitioner which was taken on the loan received from the respondents and on account of inability to pay the installments and default in making payment, the consequential action by the respondent in seizing the vehicle is questioned. In Special Civil Application No.20277 of 2018, the vehicle involved is Porsche Cayenne bearing registration no.GJ-01-RB-4447 whereas in Special Civil Application no.3295 of 2019 vehicle involved is Mercedes Benz E250 CDI bearing registration no. GJ-18-BG-4107. The facts are narrated from Special Civil Application No. 20277 of 2018.
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3. The vehicle Porsche Cayenne was purchased by the petitioner as a second hand car for which the petitioner had received a loan from the respondent Bank of Rs.95,00,000/- which was sanctioned on 27.11.2014 and the first installment was to begin on 01.01.2015 for amount of Rs.2,21,048/-, the EMI was for the period of 60 months at the rate of interest 13.99%. The said car was transferred in the name of the petitioner on 21.10.2015.
4. It is the case of the petitioner that in all 60 installments were to be paid out of which 42 installments have been paid and till 18.06.2018, the petitioner has paid regular installments. It is stated that on account of some financial crisis, the petitioner could not pay the installment due on July 2018 by NEFT and the cheque which was issued also dishonored. For the month of August 2018, the cheque issued towards the installment was also dishonored. However, by NEFT the payment was made, thereafter the petitioner has not been able to make the payment due to financial crisis, however has shown his willingness to pay the dues.
5. By the loan recall notice dated 06.10.2018, the petitioner was informed about being in arrears and called upon to pay the installments with interest and other charges. Despite such notice, the petitioner was unable to make the payment dues stated in the petition that the petitioner through private means wanted to sell off the vehicle and pay off the money to the respondent Bank and for that purpose initially, time was granted to the petitioner so as to enable the petitioner to sell car and adjust the amount received from the thereof.
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6. It is thereafter stated that all of a sudden, the respondent Bank seized the vehicle from one Mr. Mukeshbhai Zala to whom the petitioner had given the vehicle for the purpose of sell. It is stated that from said Mr. Mukeshbhai Zala, possession of the vehicle was forcibly taken. It is in this set of facts, the petitioner has invoked Article 226 of the Constitution of India with a prayer to quash and set aside the notice dated 10.12.2018 issued by the respondent Bank for selling the vehicle.
7. Learned advocate for the respondent Bank in Special Civil Application No. 3295 of 2019 has opposed the petition by raising preliminary objection that the respondent Bank being a private Bank is not amenable to writ jurisdiction. It is also submitted that the relationship between the petitioner and respondent is purely contractual relationship and the subject matter of grievance is also governed by the terms of contract agreed between the parties and therefore, no writ would lie. On merits, it is submitted that the petitioner is a chronic defaulter and has defaulted in paying monthly installments. It is submitted that sufficient time was given for the petitioner to regularize his account and at the time when the car was seized, admittedly, the petitioner was not in possession of the car, but had given it to a 3rd party, from whose possession the car was seized.
8. Having considered the rival submissions, the facts of the case as mentioned above in the preceding paragraphs clearly indicate that it is a case of a loan transaction between the petitioner and respondent private Bank and the relation between the petitioner and the respondent Bank is Page 3 of 5 Downloaded on : Tue Jun 25 06:54:17 IST 2019 C/SCA/3295/2019 ORDER governed by the terms of agreement entered into for the purpose of loan transaction. The action on the part of the respondent Bank is on account of the default in making the payment of monthly installment and thereby a breach of terms of contract for which as per the contract, the respondent Bank was entitled to take the action. The entire dispute lies in the realm of contractual relationship for which the writ jurisdiction cannot be invoked.
9. As contended by the respondent Bank that the respondent Bank is a private Bank not amenable to the writ jurisdiction, this Court draws support from the judgment of the Apex Court in the case of K.K.SAKSENA V/S INTERNATIONAL COMMISSION ON IRRIGATION AND DRAINAGE AND OTHERS reported in (2015) 4 SCC 670 where the apex court by relying upon a previous judgment in case of FEDERAL BANK LTD. V/s SAGAR THOMAS AND OTHERS reported in (2003) 10 SCC 733 has held as under:
"40. Somewhat more pointed and lucid discussion can be found in the case of Federal Bank Ltd. v. Sagar Thomas & Ors.[8], inasmuch as in that case the Court culled out the categories of body/ persons who would be amenable to writ jurisdiction of the High Court. This can be found in para 18 of the said judgment, specifying eight categories, as follows:
"18. From the decisions referred to above, the position that emerges is that a writ petition under Article 226 of the Constitution of India may be maintainable against
(i) the State (Government); (ii) an authority; (iii) a statutory body; (iv) an instrumentality or agency of the Page 4 of 5 Downloaded on : Tue Jun 25 06:54:17 IST 2019 C/SCA/3295/2019 ORDER State; (v) a company which is financed and owned by the State; (vi) a private body run substantially on State funding; (vii) a private body discharging public duty or positive obligation of public nature; and (viii) a person or a body under liability to discharge any function under any statute, to compel it to perform such a statutory function."
10. The court is of the view that in the present dispute neither the writ jurisdiction is invoked against the State Government and Authority or statutory body or an instrumentality or agency of the State nor the respondent private Bank any company which is a financed and owned by the State. The relation between the petitioner and respondent cannot be termed to be as relation which is falling in the scope of discharge of public duty or a positive obligation of public nature of the respondent private Bank.
11. The relation between the petitioner and the respondent being a contractual relation, it cannot be said that the Bank was in discharge of its function under any statute.
12. In view of the foregoing reasonings, the Court is not inclined to exercise the writ jurisdiction in the facts of the present case. The petition deserves to and is hereby dismissed.
(A.Y. KOGJE, J) URIL RANA Page 5 of 5 Downloaded on : Tue Jun 25 06:54:17 IST 2019