Gauhati High Court
Lakhi G. Marak vs Hdfc Bank Limited & Anr on 21 April, 2017
Equivalent citations: AIR 2018 (NOC) 281 (GAU.)
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM &
ARUNACHAL PRADESH)
CRP(I/O) 133 of 2016
LAKHI G. MARAK .....Petitioner
Vs
1. HDFC BANK LIMITED ....Respondent
2. SRI LENITHA M. SANGMA ....Proforma Respondent
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
Advocates for the Petitioner : Mr. B.D. Deka, Mr. M. Das.
Advocates for the Respondents : Mr. M. Sharma.
Date of hearing and Order : 21.04.2017
JUDGMENT AND ORDER (ORAL)
1. Heard Mr. B.D. Deka, learned counsel for the petitioner and Ms. N.P. Devi, learned counsel for the respondent No.1.
2. By this application under Article 227 of the Constitution of India, the petitioner has challenged the order dated 08.08.16 passed by the Debts Recovery Tribunal, Guwahati in connection with I.A. No. 19/2015 and 20/2016 arising out of O.A. No.170/2016. By filing the said O.A.No.170/2016, the respondent No.1/bank had prayed before the Tribunal for recovery of a sum of Rs.22,87,706.70 which had accrued against a loan obtained for purchasing a commercial vehicle. The said vehicle was hypothecated with the respondent No1/bank and the said vehicle was bearing Registration No.AS-01-GC-1055.
3. The petitioner has projected that he had lodged an FIR before the Williamnagar Police Station on 28.04.2016 alleging that hypothecated vehicle was stolen. The petitioner has alleged that it has come to his knowledge that the hypothecated vehicle was surreptitiously sold by the respondent/bank in collusion CRP (I/O) 133/2016 Page 1 of 5 with some other persons and as per the record procured from the concerned district transport office, it was learnt that the vehicle was shown to have been owned by one Sri Rupak Deka and the sale price in respect of the said vehicle was not credited to his bank account. The petitioner has further stated that in connection with O.A.No.170/2016, the respondent No.1/bank had filed two interlocutory application, one being I.A.No.20/2016 with the prayer for direction to take custody of the hypothecated property by removing the same from the possession and custody of the respondent or any other their party with further permission to sell the same, and the 2nd application which was registered as I.A.No.19/2016 was filed with a prayer to appoint a receiver with direction to take custody of the hypothecated property by removing the same from the possession and custody of the respondent or any other their party with further permission to sell the same. The petitioner had filed his identical written objection in both IA's wherein, amongst others, the petitioner has stated that the hypothecated vehicle was stolen on 27.04.2016 and as the petitioner did not have custody of the vehicle, the said two applications were intended to cause mischief.
4. Learned Debts Recovery Tribunal, Guwahati by its common order dated 08.08.16 has passed an interim order wherein it has been observed that when the vehicle is not in possession of the respondent, who had already lodged an FIR, hence, no prejudice is cause to the respondent if a Receiver is appointed in respect of the vehicle. It has also recorded in the said order that the applicant before the Tribunal had withdrawn I.A. No.20/2016 and the same was dismissed on withdrawal.
5. The petitioner, therefore, submits that he is aggrieved by the said order dated 08.08.2016 passed in I.A.No.19/2016 and states that he had filed his written statement wherein in Annexure-2 he has produced the record of the vehicle being owned in the name of Rupak Deka where the financer name has been shown as HDFC Bank showing the date of registration of the vehicle as on 19.04.2016. The petitioner has also annexed to his written statement before the Tribunal, the statement of accounts which is from the period of 07.03.2015 to 01.08.2016. The ground of challenge in this revision petition is, firstly, that the CRP (I/O) 133/2016 Page 2 of 5 order which has been passed by the Tribunal was essentially an order of attachment and as the order of attachment was passed without allowing him time to show cause and without requiring him to furnish security and, as such, the said order is in violation of the provisions of Section 19(13)(A) and Section 19(13)(B) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, secondly, as the police investigation is already underway before the Williamnagar Police Station, the petitioner has an indefeasible right to take recourse to the criminal law as permissible under Section 102(3) and Section 451 CrPC to seek and get custody of the vehicle from the police with a right under Section 457 of CrPC to get custody from competent court of criminal jurisdiction. It has been further submitted that the Tribunal had done an over-reach of the powers conferred to it by usurping the power of the police and the criminal courts to give custody of the stolen property to the registered owner of the vehicle, thirdly, he submits that since it is a commercial vehicle, he has a right of livelihood if such vehicle is given to his custody and therefore, the impugned order in this revision petition is totally vitiated and liable to be set aside and quashed.
6. Per contra, Ms. N.P. Devi, learned counsel appearing for the respondent No.1/HDFC bank submits that the order impugned herein was correctly passed in accordance with law and strenuously argued in support of the said order. She submits that it was after the passing of the order dated 08.08.16 by the learned Debts Recovery Tribunal, Guwahati in connection with I.A. No.19/16 that the petitioner had filed written statement and on getting the requisite informations regarding the vehicle being registered in the name of Rupak Deka, the respondent/bank had initiated the process by applying for relevant records through RTI and in due course the remedial measures will be taken on obtaining the requisite informations. He supports the validity of the said order on the ground that it was a specific case before the Tribunal, which is also recorded in the impugned order that the respondent was aware where the vehicle was kept by the petitioner herein and they are ready to give the address but it was their apprehension that police will take action only if the Tribunal passes an order in this regard. He submits that the recovery of the vehicle was in the interest of the petitioner and that the order which was passed by the CRP (I/O) 133/2016 Page 3 of 5 Tribunal was merely that the Officer-in-Charge of the Police Station, Biaja Tiniali was directed to take address from the applicant bank and take the possession of the vehicle as per law and thereafter handover the same on Zimma/ for interim custody to the receiver and therefore, rights of the parties were not determined by the impugned order. He further submits that in the impugned order, the learned Tribunal has duly taken care of all relevant provisions of law by issuing direction to the respondent to show cause as to why the order of attachment would not be passed and whether he was ready to furnish security, fixing the case for filing show cause by the respondents and therefore, there is no infirmity in the impugned order.
7. This Court has considered the rival submission made by both the parties and perused the materials on record. This Court is of the opinion that as each and every order passed by the Debts Recovery Tribunal is appellable u/s 20 of the Recovery of Debts Due to Bank and Financial Institutions, 1993, no extra ordinary circumstance has been made out to intervene in respect of the impugned order in this case as the legal recourse or remedy could be availed by filing an appeal. This Court further finds that the main allegation of the petitioner was that his vehicle has been stolen and surreptitiously sold by the bank to one Rupak Deka, therefore, it is in his own interest that the vehicle be recovered and kept in the custody of the receiver. The appointment of receiver is merely an ad-interim measure which does not divest the actual owner of his right conclusively, as it is open for the owner of the vehicle to make prayer before the Tribunal for custody of the vehicle, if so advised. It is also seen that essentially the petitioner is a debtor of the bank and a sum of Rs.22,87,706.70 is recoverable from him, so it is the paramount interest of the bank that the vehicle has to be kept in proper custody so as to secure the vehicle as well as to secure recovery of dues. This Court also presumes that before initiating a recovery process, it is normally expected that the bank issue notice of demand upon the borrower and guarantors and therefore presumption is that in the present case also the bank would have followed the same procedures and under the circumstances when the vehicle is stolen immediately prior to the initiation of recovery process before Debts Recovery Tribunal and the registration of the vehicle in the name of Rupak Deka, it is in the interest of the respondent CRP (I/O) 133/2016 Page 4 of 5 No.1/bank that the order of receiver was rightly prayed for and passed in this case. This Court is further of the opinion that as the matter relates to recovery of debt from the petitioner, the procedures under the Recovery of Debts Due to Bank and Financial Institutions Act, 1993 which is the special law shall prevail over the provisions of the Code of Criminal Procedure insofar as the Zimma of the vehicle is concerned. Under the said Act, the Debts Recovery Tribunal is the competent authority to adjudicate on the matter of receiver and the order passed by the Tribunal shall prevail over the order passed by the police or competent court under the provisions of Section 102(3), Section 451 and Section 457 of CrPC.
8. Under the provisions of Section 2(30) of the Motor Vehicle Act, a financing bank, who was holding a hypothecation under the hire and purchase agreement, is covered within the meaning of 'owner' as defined in the said Act. Therefore, the respondent/bank had the competence to maintain an application before the Debts Recovery Tribunal for securing the vehicle by appointing a receiver.
9. When the subject matter herein is about a hypothecated vehicle in respect of which a proceeding is pending before the learned Debt Recovery Tribunal, which is the competent forum to decide the matter, therefore, this Court does not find any infirmity in the impugned order dated 08.08.2016 passed by the learned Debt Recovery Tribunal, Guwahati in connection with I.A.No.19/2016 arising out of O.A. No.170/2016.
10. It is made clear that the observation made hereinabove shall not prejudice any party before the learned Debts Recovery Tribunal while finally deciding the matter in O.A. No.170/16.
11. With the aforesaid observation, this revision petition is dismissed. However, there shall be no order as to costs.
JUDGE Mkumar CRP (I/O) 133/2016 Page 5 of 5