Kerala High Court
Shamon P.S vs Station House Officer on 19 November, 2019
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
TUESDAY, THE 19TH DAY OF NOVEMBER 2019 / 28TH KARTHIKA, 1941
WP(C).No.15233 OF 2017(D)
PETITIONER/S:
SHAMON P.S.,S/O SAJJAD, PUTHUKADAN HOUSE,
RAYONPURAM P.O.,KANJIRAKKADU, PERUMBAVOOR,ERNAKULAM
DISTRICT -683543.
BY ADVS.
SRI.T.H.ABDUL AZEEZ
SRI.V.A.AJMAL
RESPONDENT/S:
1 STATION HOUSE OFFICER, KONDOTTY POLICE STATION
KONDOTTY, MALAPPURAM.
2 M/S. INDIA INFO LINE FINANCE LTD.
II FL TOWERS, NO.143, MGR ROAD,PERUNGUDI, CHENNAI-600
096, REPRESENTEDBY ITS AUTHORIZED OFFICER
MRS.B.KAVITHAI.
3 MR.S.JAMALUDEEN,SOLE ARBITRATOR, RETIRED SENOR CIVIL
JUDGE,1/63, SIDCO NAGAR, 5TH MAIN ROAD,CHENNAI-600
049.
4 M/S. INDIA INFO LINE FINANCE LTD.,BRANCH OFFICE, JOSE
JUNCTION, M.G.ROAD,ERNAKULAM 682016, REPRESENTED BY
ITS AUTHORISED OFFICER.
5 REGIONAL TRANSPORT OFFICER,REGIONAL TRANSPORT OFIFCE,
MUNICIPAL SHOPPING COMPLEX BUILDING, PATTAL, IRINGOLE
P.O.SH16, PERUMBAVOOR-683 543.
6 ADDL.R6. AMEER,
NEDUMPURATH ROTTERY ROAD, MARKET P.O., MUVATTUPUZHA
PIN-686673.
ADDL.R6 IS IMPLEADED AS PER ORDER DATED 28.03.2019 IN
IA NO. 9791/2018.
R1 & R5 SMT.PRINCY XAVIER, GOVT.PLEADER
R2 & R4 BY SRI.G.HARIHARAN
R6 BY ADV. SMT.K.G.SAROJINI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
19-11-2019, THE COURT ON 19-11-2019 DELIVERED THE FOLLOWING:
WPC No. 15233 of 2017 2
JUDGMENT
The petitioner has purchased a vehicle availing the finance provided by the second respondent. The hypothecation agreement entered into by the petitioner with the second respondent in this connection provides for arbitration in accordance with the Arbitration and Conciliation Act,1996 (the Act), for resolution of the disputes between the parties. The second respondent has initiated arbitration proceedings for realisation of the amounts due from the petitioner in respect of the transaction, alleging that the petitioner has committed default in repaying the finance availed. The Arbitral Tribunal has initially passed Ext.P2 interim order in the said proceedings for appointing a representative of the second respondent as Commissioner/Receiver to take possession of the hypothecated vehicle by availing police assistance. It is stated by the petitioner that the authorized representative of the second respondent has consequently taken possession of the vehicle purchased by the petitioner with police assistance as permitted by the Arbitral Tribunal. The case set out by the petitioner in the writ petition is that the conduct of the second respondent in taking possession of the vehicle without the intervention of the court on the strength of Ext.P2 interim order, is illegal. The petitioner, therefore, seeks appropriate directions to the second respondent to return the vehicle to him.
WPC No. 15233 of 2017 3
2. It is seen that in terms of the interim order passed by this Court on I.A. No.3 of 2018, the writ petition was amended and a challenge to Ext.P2 interim order of the Arbitral Tribunal was also incorporated.
3. Heard the learned counsel for the petitioner as also the learned counsel for the second respondent.
4. The learned counsel for the petitioner reiterated the contention, placing reliance on the decision of this Court in Pradeep K.N. v. Station House Officer, Perumbavoor and Another [2016 (2) KHC 714], that the conduct of the second respondent in taking possession of the vehicle without the intervention of the court is arbitrary and illegal.
5. I find several impediments for the petitioner to succeed in this matter. The challenge against Ext.P2 order has to fail on the sole ground that the same is an appealable order under Section 37(2) of the Act and there is, therefore, no reason for this Court to entertain a writ petition challenging the said interim order, in exercise of the discretionary jurisdiction under Article 226 of the Constitution. Further, it is seen that on 13.04.2017, the Arbitral Tribunal concluded the arbitration proceedings by passing the final award permitting the second respondent to realise from the petitioner a sum of Rs.13,27,421.95 by selling the hypotheticated vehicle and also by other means. The award passed by the Arbitral Tribunal in this WPC No. 15233 of 2017 4 connection is part of the records as Ext.R2(a). The petitioner has not challenged the final award also. As the vehicle sought to be recovered through this proceedings is a vehicle purchased by the petitioner by availing the finance provided by the second respondent, in so far as the second respondent has already obtained an arbitral award for realisation of large amounts by sale of the said vehicle, I do not think that this court would be justified in exercising the discretionary jurisdiction under Article 226 of the Constitution for issuing a direction to the second respondent to return the said vehicle to the petitioner.
In the said view of the matter, the writ petition is liable to be dismissed and I do so.
Sd/-
P.B.SURESH KUMAR
PKK JUDGE
WPC No. 15233 of 2017 5
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1: TRUE COPY OF THE REGISTRATION CERTIFICATE
ISSUED BY THE RTO PERUMBAVOOR OF THE
BEHICLE BHARAT BARZ 1217 C BEARING
REGISTRATION NO.KL-40-L-7178
EXHIBIT P2: TRUE COPY OF THE ORDER DATED 7.3.2017
PASSED BY THE 3RD RESPONDENT ARBITRATOR.
EXHIBIT P3: TRUE COPY OF THE INVENTORY PREPARED BY THE
2ND RESPONDENT IN RESPECT OF THE VEHICLE
BHARAT BARZ 1217C BEARING REGISTRATION
NO.KL-40L-7178 OF THE PETITIONER.
RESPONDENTS EXHIBITS:
EXHIBIT R4(a): TRUE COPY OF THE APPLICATION FOR FRESH RC
FILED UNDER SECTION 51(5) OF THE M.V.ACT BY
THE 2ND RESPONDENT ON 22.04.2017 BEFORE THE 5TH RESPONDENT EXHIBIT R2(a) TRUE COPY OF THE FINAL AWARD DATED 13.04.2017 PASSED BY THE ARBITRATOR IN CONNECTION WITH ARC/IIFL/VL/2326 OF 2016 EXHIBIT R2(b) TRUE COPY OF THE JUDGMENT MADE IN WPC NO.3393/2019 DATED 14.2.2019