Himachal Pradesh High Court
Sudarshan Kumar & Anr vs State Of H.P. And Ors on 5 April, 2023
Bench: Tarlok Singh Chauhan, Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
CWP No. 1721/2023
Decided on : 3.4.2023
.
Sudarshan Kumar & anr. .....Petitioners
Versus
State of H.P. and ors. ....Respondents
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting?1No
For the Petitioner: Ms. Ajay Sipahiya & Ms. Parul Negi,
Advocates.
For the Respondents: Mr. Anup Rattan, A.G. with
Mr. Y. W. Chauhan, Sr. Addl. A.G.,
Ms. Priyanka Chauhan, Dy.A.G. &
Mr. Rajat Chauhan, Law Officer, for
respondents-State.
_____________________________________________________________________
Justice Tarlok Singh Chauhan, Judge (oral)
The instant petition has been filed for grant of following substantive reliefs:
"i. issue an appropriate writ in the nature of certiorari to quash and set aside the pre-sale notice dated 6.3.2023 & any other proceedings in pursuant to the said pre-sale notices.
ii. issue a writ in the nature of mandamus to the State Respondents to take appropriate action against the Respondent Company for its illegal arbitrary acts and register an FIR against the authorized signatories/ 1 Whether reporters of the local papers may be allowed to see the judgment? Yes.::: Downloaded on - 06/04/2023 20:33:36 :::CIS 2
managers/agents/any other person acting on behalf of the Respondent Company for taking illegal possession of the .
vehicle in question without adhering to due process of law;
iii. issue a writ in the nature of certiorari or any other appropriate writ, order or direction calling for the record of the Ref: HDB/RB-7134/LOT-30/178 titled as "M/s HDB Financial Services Limited VS Sudarshan Kumar and Another" pending before the respondent No.8, and quashing and setting-aside the said arbitration proceeding as the same is illegal, unconstitutional, null and void being without jurisdiction;
iv. issue an appropriate writ, order or directions to the Respondent Company to hand over the possession of the Paver Finisher (Waken made) vehicle to the Writ Petitioners and pay compensation to the Petitioners for taking possession of the vehicle in question illegally without adhering to the process of law."
2 According to the petitioners, petitioner No.1-Firm is engaged in activities of road construction and for that purpose had availed construction equipment loan facility from respondent No.5-Company i.e. M/s HDB Financial Service Ltd. vide loan agreement dated 18.5.2022 for purchasing the paver finisher vehicle. Loan agreement was entered into between the petitioners and said respondent-company and in furtherance thereof, the petitioner-Firm claims to have made payment of Rs.2,10,600/-
to respondent-company. However, respondent-company filed an ::: Downloaded on - 06/04/2023 20:33:36 :::CIS 3 application under Section 9 of the Arbitration and Conciliation Act, 1996 before the Civil Courts at Calcutta and obtained ex .
parte order on 28.9.2022.
3 Petitioner No.1 appeared before the sole Arbitrator and made a request for copy of statement of claim along with all documents filed by respondent-Company vide application dated 3.12.2022. Later, the civil Court at Calcutta recorded statement of respondent No.5, wherein it was submitted that respondent-
company is taking steps as per arbitration proceedings and as such does not want to pursue the case further.
4 At the same time, civil court at Calcutta passed separate order dated 28.2.2023 that since the petitioners herein did not get any opportunity to defend the case filed by respondent-company, therefore, possession of the suit vehicle, which had been taken over by the receiver pursuant to direction to this effect, be handed back to the petitioners herein within 15 days from the date of receipt of copy of the order. It is apt to reproduce relevant portion of the order dated 28.2.2023, which is as under:
"that the application filed on this day by the petitioner is hereby considered and allowed.::: Downloaded on - 06/04/2023 20:33:36 :::CIS 4
Let the instant Misc. Case be dismissed for non- prosecution.
.
Ld. Receiver is hereby discharged from the duty of receivership.
Since the Respondents did not get any opportunity to defend the case of the petitioner, for which the Ld. Receiver is requested to hand over the possession of the suit vehicle to the Respondents within 15 days from the date of receipt of the copy of this order. Let a copy of this order be communicated to the Ld. Receiver for information and taking necessary action, as indicated above."
5 In such circumstances, we really fail to understand as to why the petitioners have rushed to this Court by filing the instant petition when their interest has already been safeguarded by the order passed by the civil court at Calcutta.
6 Learned counsel for the petitioners would contend that the proceedings before the said court are nullity and, therefore, coram non judice.
7 We really wonder why and how the petitioners would argue against themselves when their interest is adequately safeguarded. If the order as passed by the civil court is required to be complied with, the respondent-Company herein would not ::: Downloaded on - 06/04/2023 20:33:36 :::CIS 5 and in fact cannot assail the order on any ground including maintainability as it is in the proceedings initiated by the .
respondent-company that the order came to be passed.
8 In such circumstances, we find no hesitation to conclude that the instant petition is totally misconceived and premature at this stage, therefore, is required to be dismissed.
Ordered accordingly. Pending application(s), if any, also stands dismissed.
(Tarlok Singh Chauhan)
r Judge
(Virender Singh)
3.4.2023 Judge
(pankaj)
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