Karnataka High Court
Sri Binod Tater vs Veerabadra on 22 October, 2018
Author: P.S.Dinesh Kumar
Bench: P.S. Dinesh Kumar
1 CRL.P.No.5776/2018
®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF OCTOBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR
CRIMINAL PETITION No.5776 OF 2018
BETWEEN:
SRI. BINOD TATER
S/O DEDRAJ TATER
AGED ABOUT 52 YEARS
R/O D.NO.1354
9TH WARD, NAHAR COLONY
M.P. PRAKASH NAGAR
HOSPETE
BELLARY DISTRICT - 583 201
REP BY ITS GPA HOLDER
SRI. Y. SREETEJA
S/O Y. KARUNAKAR
AGED ABOUT 27 YEARS
R/O TYPE II/C
STAFF QUARTERS
KENDRIYA VIDYALA
T.B.DAM, HOSPETE
BELLARY DISTRICT - 583 201 ... PETITIONER
(BY SRI. S.R.HEGDE HUDLAMANE, ADVOCATE)
AND:
1. VEERABADRA
S/O SIDDAPPA
AGED ABOUT 38 YEARS
NO 32, 1ST FLOOR
80 FEET ROAD
DR. RAJAKUMAR ROAD
RAJAJINAGAR
BANGALORE - 560 010
2 CRL.P.No.5776/2018
2. MAHINDRA AND MAHINDRA
FINANCIAL SERVICE LTD
HAVING ITS REGIONAL OFFICE
AT NO.32, W. COMPLEXT
PRAKASH NAGAR
80 FEET ROAD
DR. RAJKUMAR ROAD
RAJAJINAGAR,
3RD STAGE
I.C.I.C.I BANK
BANGALORE - 560 010
REP BY ITS AREA LEGAL MANAGER
MOHAN KUMAR H.G.
AGED ABOUT 40 YEARS
3. STATE OF KARNATAKA
BY K.R. PURAM POLICE STATION
REP BY PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU - 560 001 ... RESPONDENTS
(VIDE ORDER DATED 21/8/2018,
SERVICE OF NOTICE IS HELD SUFFICIENT
IN R/O - R-1;
SMT. NEERAJA KARANTH, ADVOCATE FOR R-2;
SRI. CHITAN DESAI, HCGP FOR R-3)
THIS CRL.P IS FILED U/S.482 CR.P.C., PRAYING TO SET
ASIDE THE ORDER PASSED BY THE LEARNED XXVI ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, AT MAYO HALL, BANGALORE
(CCH.NO.20) MADE IN CRL.RP.NO.25044/2018, DATED 25.07.2018
AS PER ANNEXURE THERE BY DISMISSING THE COMPLAINT FILED
BY THE PETITIONER AND ALSO CONFIRMING THE ORDER PASSED
BY THE LEARNED X A.C.M.M AT MAYO HALL, BANGALORE CITY AT
PCR.NO.59070/2017 MADE ON I.A.NO.1 AND 2 DATED
27.03.2018/28.03.2018, REJECTING THE CLAIM OF PETITIONER TO
RELEASE THE VEHICLE AS PER ANNEXURE AND ETC.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE
COURT MADE THE FOLLOWING:-
3 CRL.P.No.5776/2018
ORDER
The point involved for consideration in this case is, as to whether a financier can repossess a vehicle based on an agreement between financier and borrower?
2. Heard Shri S.R.Hegde Hudlamane, learned Advocate for the petitioner and Smt.Neeraja Karanth, learned Advocate for respondent No.2.
3. Briefly stated the facts of the case are, petitioner borrowed a sum of Rs.18,00,000/- from M/s Mahindra & Mahindra Financial Service Ltd., to purchase a goods vehicle agreeing to pay monthly installment of Rs.50,000/- as per the loan agreement.
4. It appears on 14.10.2017, whilst the goods vehicle was moving from Bangalore to Mysore, the first respondent allegedly an agent of financier forcibly took possession of the said vehicle. Petitioner lodged PCR No.59070/2017 before the 10th Additional Chief 4 CRL.P.No.5776/2018 Metropolitan Magistrate, Bangalore, stating inter alia, that the act of first respondent amounted to theft and robbery and accordingly, prayed the learned Magistrate to direct investigation by the jurisdictional police.
5. Learned Magistrate, by his order dated 4.11.2017, referred the matter under Section 156(3) of Cr.P.C. for investigation. Pursuant thereto, FIR No.661/2017 was registered in K.R.Puram Police Station. During the course of investigation, K.R.Puram police seized the vehicle in question. Petitioner as also the financier filed separate applications under Sections 451 and 457 of Cr.P.C. before the learned Magistrate for release of the vehicle. Learned Magistrate rejected the application filed by the petitioner and allowed the application filed on behalf of the financier. The petitioner challenged the said order passed by the Magistrate before the learned Sessions Judge. By the impugned order, learned Session Judge has dismissed the revision 5 CRL.P.No.5776/2018 petition. Feeling aggrieved, the petitioner is before this Court.
6. Shri S.R.Hegde Hudlamane, learned Advocate for the petitioner submits that the order passed by the learned Magistrate rejecting petitioner's application as also the dismissal of revision petition by the learned Sessions Judge are contrary to the law laid down by the Supreme Court of India in Citicorp Maruti Finance Limited Vs. S.Vijayalaxmi1. Adverting to paragraph No.26 of the said decision, he argued that the financier may repossess a vehicle only through due process of law and not in the manner in which the financier has now repossessed by using force.
7. Per contra, Smt.Neeraja Karanth, learned advocate for the financier adverting to paragraph No.13 of the judgment of the Supreme Court of India in ICICI 1 (2012) 1 SCC 1 6 CRL.P.No.5776/2018 Bank Ltd. Vs. Prakash Kaur and Others2 argued that, admittedly, petitioner is a defaulter and therefore the financier has taken action to repossess the vehicle to recover the loan amount. She argued that the petitioner having agreed to repay the installments as per the agreement between the borrower and financier, be directed to pay the installments upto date and then seek possession of the vehicle from the financier.
8. I have carefully considered the submissions of learned Advocates for the parties and perused the records.
9. It is not in dispute that financier has lent money to the petitioner to purchase the vehicle in question and the borrower has covenanted to repay the loan amount in equal installments. The financier through its agent, has forcibly taken possession of the vehicle. Adverting to 2 (2007) 2 SCC 711 7 CRL.P.No.5776/2018 the decision in ICICI bank case, the Supreme Court of India in Citicorp (supra) has held as follows:
"26. Since during the pendency of the special leave petitions before this Court, the appellant had complied with the orders of the District Forum and the National Commission had already set aside the punitive damages imposed by the State Commission, the reliefs prayed for on behalf of the appellant had been rendered ineffective and the submissions were, therefore, channelled towards the question of whether the for a (sic forum) below were right in holding that the vehicles had been illegally and/or wrongfully recovered by use of force from the loanees. The aforesaid question has since been settled by several decisions of this Court and in particular in the decision rendered in ICICI Bank Ltd. v. Prakash Kaur. It is not, therefore, necessary for us to go into the said question all over again and we reiterate the earlier view taken that even in case of mortgaged goods subject to hire-purchase agreements, the recovery process has to be in accordance with law and the recovery process referred to in the agreements also contemplates such recovery to be effected by due process of law and not by use of force."
(emphasis supplied)
10. A financier can seek recovery of possession of vehicle financed by him, only by following the due process of law and cannot resort to repossess the same by using force. So far as the recovery of loan amount is 8 CRL.P.No.5776/2018 concerned, the financier may take such recourse open to him in law and seek recovery of loan.
11. In the circumstances, the orders passed by the learned Magistrate on the application filed by the petitioner and confirmed with the dismissal of revision petition by the learned Sessions Judge are unsustainable in law.
12. Resultantly, this petition merits consideration. Hence the following:
ORDER a. Petition is allowed;
b. The orders dated 25.07.2018, in Criminal Revision Petition No.25044/2018 passed by the learned XXVI Additional City Civil & Sessions Judge, Mayo Hall, Bangalore and the order dated 28.03.2018 in PCR No.59070/2017 passed by the X Additional Chief Metropolitan Magistrate, Bengaluru, are set aside;9 CRL.P.No.5776/2018
c. The application filed by the petitioner under Sections 451 & 457 of Cr.P.C. is allowed;
d. The second respondent Financier is directed to forthwith hand over vehicle to the petitioner on the condition that petitioner shall not change the nature of the vehicle.
In view of disposal of the petition, I.A.No.1/2018 does not survive for consideration and it is also disposed of.
No costs.
Sd/-
JUDGE Yn.