IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 27TH JUNE 2011 / 6TH ASHADHA 1933 OP(Crl.).No. 1036 of 2011(Q) --------------------------------- CRMP.323/2011 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I,PERUMBAVOOR .................... PETITIONER (S): ------------------------ BEERAN KUNJU,AGED 43,S/O.IBRAHIM, PULICAKKUDY HOUSE,MUDICKAL,PERUMBAVOOR. BY ADV. SRI.PAUL K.VARGHESE RESPONDENT(S): ----------------------- 1. STATE OF KERALA,REP.BY PUBLIC PROSECUTOR HIGH COURT OF KERALA,ERNAKULAM.682 031. 2. THE SUB INSPECTOR OF POLICE, PERUMBAVOOR,PIN- 683 542. 3. SREERAM TRANSPORT FINANCE CO.LTD, EDAPPALLY,REP.BY P/A HOLDER RAJU THOMAS,AGED 47, VARANGALAKUDY HOUSE,NAYARUPARA P.O,EDUKKI, HAVING OFFICE AT EDAPPALLY,ERNAKULAM,PIN-682 024. * 4. DEVANAND,ARBITRATOR,VALANJABALAM, KOCHI- 682 016. *R4 IS DELETED AS PER ORDER DTD. 19.3.2011 IN OP(CRL) NO.1036/2011 R1 & R2 BY PUBLIC PROSECUTOR SRI.V.MANU R3 BY ADVS. SRI.C.HARIKUMAR, SMT.MOLLY KOSHY. THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 27/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss OP(CRL) NO.1036/2011 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE RECEIPT NO.8836589 DTD. 19.8.08 FOR RS. 14,000/- ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. P2:- COPY OF THE RECEIPT NO.8932371 DTD. 24.10.2008 FOR RS. 12,500/- ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. P3:- COPY OF THE RECEIPT NO.9043402 DTD. 26.11.08 FOR RS.16,000/- ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. P4:- COPY OF THE RECEIPT NO.AA 6811966 DTD. 9.1.09 FOR RS.10,000/- ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. P5:- COPY OF THE RECEIPT NO.9025696 DTD. 30.1.2009 FOR RS. 4,000/- ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. P6:- COPY OF THE RECEIPT NO.AA 6786820 DTD. 19.9.2009 FOR RS. 40,000/- ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. P7:- COPY OF THE RECEIPT NO.AA 1140405 DT.D 6.12.2009 FOR RS. 10,000/- ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. P8:- COPY OF THE AGP NO.5/2011 FILED BY THE 3RD RESPONDENT BEFORE THE ARBITRATOR, ERNAKULAM DTD. 12.1.2011. P9:- COPY OF THE ORDER IN IA.2/2011 IN AOP NO.5/2011 DTD. 19.1.2011. P10:- COPY OF THE CLAIM PETITIONER FILED BY THE 3RD RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, PERUMBAVOOR DTD. 27.1.2011. P11:- COPY OF THE CLAIM PETITION AS CRL.MP. 323/2011 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, PERUMBAVOOR DTD. 28.1.2011. P12:- COPY OF THE COMMON ORDER IN CRL.MP.323/2011 AND CMP. 312/2011 OF JFCM COURT, PERUMBAVOOR DTD. 9.3.2011. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.S. TO JUDGE tss THOMAS P.JOSEPH, J. ==================================== O.P(Crl.) No.1036 of 2011 ==================================== Dated this the 27th day of June, 2011 J U D G M E N T Petitioner is said to have availed a loan of Rs.3,40,000/- from the third respondent and purchased a lorry for Rs.6,00,000/-. According to the petitioner, he repaid Rs.1,90,000/- and on account of financial difficulties was unable to pay the balance amount. Thereon the third respondent initiated proceedings pursuant to the terms and conditions in the agreement before the Arbitrator and obtained an ex parte order under Section 17 of the Arbitration and Conciliation Act (for short, “the Act”) for seizure of the vehicle. According to the petitioner, with the assistance of police, third respondent re-possessed the vehicle. The police produced the vehicle in the court of learned Judicial First Class Magistrate, Perumbavoor before whom third respondent filed Crl. M.P. No.312 of 2011 while petitioner filed Crl. M.P. No.323 of 2011, both for interim custody of the vehicle. Learned Magistrate as per Ext.P12, common order gave interim custody of the vehicle to the third respondent. That order is under challenge. Learned counsel O.P(Crl.) No.1036 of 2011 -: 2 :- submitted that of the amount availed by petitioner substantial amount has already been paid and requested that interim custody of the vehicle may be given to the petitioner. Learned counsel for third respondent pointed out that since the Arbitrator in exercise of the power conferred on him under Sec.17 of the Act has passed the order allowing third respondent to repossess the vehicle it was not necessary for the police to have produced the vehicle before learned Magistrate and at any rate there is nothing wrong in the third respondent having possession of the vehicle in view of the order passed by the Arbitrator. It is also pointed out by learned counsel that the order under Sec.17 of the Act is appealable under Sec.37 of the Act and at any rate it is open to the petitioner to move the Arbitrator himself and seek direction for custody of the vehicle if petitioner is aggrieved. 2. Having heard counsel on both sides I am inclined to think that notwithstanding Ext.P12, order passed by learned Magistrate on the petitions filed for interim custody of the vehicle, it is open to the petitioner either to challenge the order passed by the Arbitrator (subject to the period of limitation) or move the Arbitrator himself and seek appropriate relief until disposal of the arbitration proceedings. O.P(Crl.) No.1036 of 2011 -: 3 :- Original Petition is closed without prejudice to the above right of petitioner. THOMAS P. JOSEPH, JUDGE. vsv