IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 25TH AUGUST 2011 / 3RD BHADRA 1933 WP(C).No. 19876 of 2011(H) ------------------------------- PETITIONER(S): ------------------ BRAINY CHERIAN VARGHESE CHIRAYIL KOODAN KULLANGARA, ERROR SOUTH, ERNAKULAM BY ADV. SRI.T.RAJESH RESPONDENT(S): -------------------- 1. THE COMMISSIONER OF POLICE, COCHIN CITY, O/O.OF THE CITY POLICE COMMISSIONER ERNAKULAM-31 2. THE CIRCLE INSPECTOR OF POLICE, HILL PALACE POLICE STATION, TRIPUNITHURA-682020 3. MAGMA FIN CORP,REP.BY ITS MANAGER, KOCHI BRANCH, JAIN TOWER, 1ST FLOOR, POWER HOUSE JUNCTION, N.G.BYE PASS, VYTTILA-682019 ADV. SRI.PHILIP T.VARGHESE FOR R3 SRI.THOMAS T.VARGHESE FOR R3 SMT.ACHU SUBHA ABRAHAM FOR R3 SMT.V.T.LITHA FOR R3 SMT.AFSANA ASHRAF FOR R3 SMT.T.M.BINITHA FOR R3 GOVT. PLEADER SMT.C.M.CHARISMA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 19876 of 2011(H) APPENDIX PETITIONER'S EXTS EXT.P1:- TRUE COPY OF THE CUSTOMER PROPOSALS FORWARDED BY THE 3RD RESPONDENT ON 05/09/08. EXT.P2:- TRUE COPY OF THE REPRESENTATION DT.14/07/11 SUBMITTED BY THE PETITIONER. //TRUE COPY// P.A. TO JUDGE PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ W. P. C. No.19876 of 2011 ------------------------------------------------ Dated this the 25th day of August, 2011 ORDER Abdul Rehim, J Petitioner is a fleet owner having 40 trucks, who is having contract with Public Sector Undertakings like FACT, Hindustan Petroleum Corporation Ltd., Indian Oil Corporation Ltd. etc. This Writ Petition is filed seeking direction to respondents 1 and 2 to afford protection to 12 vehicles owned by the petitioner (TN 38 AV 3276, TN 38 AX 5136, TN 38 AX 4647, KL-39B1082, KL-39B1088, KL-40C 6953, KL-40C 7238, KL-40C 7472, TN 38 BD 2091, TN 38 BD 2094, TN 38BD 2161 and TN 38 BD 3997) against forceful re- possession by the 3rd respondent. Admittedly, the petitioner had availed financial assistance from the 3rd respondent with respect to above said vehicles. It is further admitted that due to some technical problems payments due to the petitioner from the Public Sector Undertakings were delayed W. P. C. No.19876 of 2011 -2- and it had resulted in defaulting payment of monthly instalments due to the 3rd respondent. It is alleged that inspite of various approaches made, the 3rd respondent is not amenable to allow time to clear the arrears and that they are taking steps to have re-possession of the vehicles in a forceful and illegal manner using 'goondas'. It is complained that the petitioner was threatened by the staff of the 3rd respondent requesting to surrender possession of the vehicles otherwise to face consequences of forceful re- possession. According to the petitioner, the 3rd respondent has men and machinery to fulfil their illegal ends by taking law into their own hands. The threat now created by the 3rd respondent is illegal and highhanded, because even if there is arrears in instalments, the 3rd respondent can take over possession of the vehicles only through legal methods. Therefore, apprehending illegal and forceful action from the side of the 3rd respondent, the petitioner had submitted Ext.P2 before the 1st respondent. Since no effective action was taken by the 1st respondent, this Writ Petition is filed. W. P. C. No.19876 of 2011 -3- 2. A detailed counter affidavit was filed by the 3rd respondent. It is contended that the repayment of loans with respect to the 12 vehicles are in arrears. As on today there is default to the tune of ` 18,58,811/-. It is contended that the 3rd respondent has got every right to take possession of the vehicle in case of default committed by the petitioner. In this regard, the 3rd respondent relies on the legal proposition settled through the decision of the Honourable Supreme Court in Orix Finance (India) Ltd. v. Shri.Jagmander Singh (2006(1) KLT 814). The allegation regarding threat and forceful action is denied. 3. Considering the factual circumstances, we are of the opinion that any action from the side of the 3rd respondent for re-possession of the vehicles through legal methods on the basis of the default committed by the petitioner, could not be restrained through any directions issued to the police authorities. Therefore, we are not inclined to allow the relief sought for. 4. Confronted with the above situation, learned counsel W. P. C. No.19876 of 2011 -4- appearing for the petitioner had offered that the petitioner is ready and willing to clear payment of the defaulted amounts within a short period. It is undertaken that 50% of the amounts in default will be cleared payment within a period of one month and the balance can be paid in instalments within a short period. 5. Considering the offer made as above, we are of the opinion that the discretionary jurisdiction vested on us can be exercised in favour of the petitioner in order to facilitate to regularise the loan accounts and to restrain the 3rd respondent from taking any coercive steps for re-possession of the vehicles. Accordingly the Writ Petition is disposed of directing the petitioner to make payment of 50% of the arrears as mentioned above, on or before 30/09/11. The petitioner shall also make payment of the balance 50% in 4 (four) equal monthly instalments falling due on or before the last day of the succeeding four months. It is made clear that the petitioner should also make payment of the regular monthly instalments due for the respective months, along W. P. C. No.19876 of 2011 -5- with the above said payments. If payment as directed above is made without any default, the 3rd respondent is restrained from taking any further steps for re-possession of the vehicles in question, and shall allow the petitioner to continue payment of future monthly instalments in accordance with the original schedule of repayment. 6. The Writ Petition is disposed of with the above directions. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-