IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 8TH AUGUST 2011 / 17TH SRAVANA 1933 WP(C).No. 19982 of 2011(W) ----------------------------------------- PETITIONER(S): ------------------------- MOHANAN.G, KEERTHI-3, PUNNATHANAM, MUKKAMPALAMOODU, PEYAD POST, THIRUVANANTHAPURAM. BY ADVS. SRI.NAGARAJ NARAYANAN, SRI.SAIJO HASSAN, SRI.PRATHAP PILLAI, SRI.RAFEEK. V.K., SRI.BENOJ C AUGUSTINE, SRI.I.J.AUGUSTINE, SRI.SEBIN THOMAS. RESPONDENT(S): --------------------------- 1. DEPUTY SUPERINTENDENT OF POLICE, OFFICE OF THE DEPUTY SUPERINTENDENT OF POLICE, NEDUMANGAD, THIRUVANANTHAPURAM DISTRICT-675 541. 2. CIRCLE INSPECTOR OF POLICE, ARYANAD, THIRUVANANTHAPURAM DISTRICT-695 542. 3. WRIGHTUS, SUB INSPECTOR OF POLICE, VILAPPISALA POLICE STATION, THIRUVANANTHAPURAM DISTRICT-695 573. 4. MAGMA FINCORP LIMITED, KUNNUMPURAM,GPO, PULIMOOD, STATUE, THIRUVANANTHAPURAM DISTRICT, PIN 695 001. 5. SHOBANA KUMAR, COLLECTION AGENT, MAGMA FINCORP LIMITED, KUNNUMPURAM, GPO, PULIMOOD, STATUE, THIRUVANANTHAPURAM DISTRICT - 695 001. R1 & R2 BY GOVERNMENT PLEADER SRI. T.K.VIPINDAS R4 & R5 BY ADVS. SRI.PHILIP T.VARGHESE, SRI.THOMAS T.VARGHESE, SMT.ACHU SUBHA ABRAHAM, SMT.V.T.LITHA, SMT.AFSANA ASHRAF, SRI.BABU THOMAS(PERUMATTIKUNNEL). THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/08/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.19982/2011 W APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE REGISTRATION CERTIFICATE OF VEHICLE BEARING NO.KL-20A-5215 (DIESEL) OF THE PETITIONER. P2: COPY OF THE CASH RECEIPTS ISSUED FROM THE MAGMA FINCORP LTD. P3: COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DTD. 15/07/2011. RESPONDENTS' EXHIBITS: R4: COPY OF THE STATEMENT OF ACCOUNTS AS ON 25/07/2011. /TRUE COPY/ P.S.TO JUDGE Kss PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ. ---------------------------------------------------- WP(C). No. 19982 of 2011 ----------------------------------------------- Dated this the 8th day of August, 2011 J U D G M E N T Pius C.Kuriakose, J. The petitioner who claims to be the owner of Ford Fiesta diesel car bearing registration No. KL-20-A-5215 as per Ext.P1 certificate of purchase has filed this writ petition seeking police protection directions against the attempt of 4th respondent finance company who rendered financial assistance for the purchase of the car, and against the 5th respondent collection agent of the 4th respondent company. The allegation is that the 4th respondent company is threatening to dispossess the petitioner of the car other than through due process of law by engaging collection agents and goondas. 2. Serious counter affidavit is filed by respondents 4 and 5 wherein on the basis of Ext.R4 statement of accounts it is contended that as of now a sum of Rs.78,522/- is due WP(C).19982/11 -2- from the petitioner towards instalments in arrears and a further amount of Rs.43,008/- is also due by way of additional finance charges. It is contended that on the terms of the agreement entered into between the petitioner and the 4th respondent, the company has got every right to repossess the vehicle in terms of the hire purchase agreement executed between the parties. 3. We have heard Sri. N.Nagraj Narayanan, learned counsel for the petitioner and Sri. Philip T.Varghese, learned counsel for the contesting respondents inextenso. On the strength of the judgment of the Supreme Court in Orix Finance (India) Ltd. v. Shri Jagmander Singh, 2006(1) KLT 814 SC it was very forcefully argued by Mr. Philip T.Varghese that the action of the 4th respondent company cannot be called for question in our present jurisdiction as the company is only trying to enforce an essential condition in the hire purchase agreement to which the petitioner WP(C).19982/11 -3- became a party willingly. Per contra Sri. Nagaraj Narayanan would draw our attention to the judgment of a learned single judge of this Court in Shibi Francis v. State of Kerala, 2007(3) KLT 923. According to Mr. Nagaraj Narayanan, the judgment of the Supreme Court in Orix Finance (India) Ltd.'s case was distinguished by this Court in Shibi Francis's case and is distinguishable from the facts of the present case. It was pointed out by Mr. Nagaraj Narayanan that while in Orix Finance (India) Ltd.'s case the company which wanted to repossess the vehicle was the owner of the vehicle in the present case the petitioner continues to be the registered owner in the R.C. Book. He also submitted that Orix Finance (India) Ltd.'s case was a case where the vehicle was repossessed unlike the present case where the petitioner wants to prevent repossession with the aid of this Court. According to the learned counsel, the ratio of the judgment in Shiby Francis's case is clearly WP(C).19982/11 -4- to the effect that terms of agreement cannot be allowed to be implemented by availing the services of hired hoodlums as the same will be against the principle of rule of law which is the basic fabric of our constitutional scheme. Mr. Nagaraj Narayanan also relied on the judgment of another single Judge of this Court in Bhahuleyan v. State of Kerala, 2007 (4) KLT 402. The learned counsel submitted that under that judgment this court has approved the judgment in Shibi Francis's case as one laying down the law correctly and applicable to the facts and circumstances available to the one obtaining in the present case also. Lastly Mr. Nagaraj Narayanan placed reliance on a subsequent judgment of the Supreme Court in ICICI Bank Ltd. v. Prakash Kaur, (2007)2 SCC 711. The counsel submitted that under that judgment the two learned Judges of the Supreme Court who constituted the bench by separate concurring judgments have practically endorsed the view taken by the learned WP(C).19982/11 -5- Judges of this Court in an identical circumstance. 4. Responding to the submissions of Mr. Nagaraj Narayanan, Sri.Philip T.Varghese would submit that the allegation that the 4th respondent is attempting to repossess the vehicle with the aid of goondas and by employing muscle men is without any basis. What was done by the 4th respondent was only to demand the defaulted instalments and additional finance charges. When there was no response to the demand notice, the police was approached. It cannot be said there was any attempt to take law into its own hands by the 4th respondent. 5. We have very anxiously considered the rival submissions addressed at the bar. As for the pith question raised, ie., whether it is open to a hire purchase company to repossess the vehicle which is subject matter of the hire purchase agreement by engaging goondas or muscle men by calling them repossession agents or any other attractive WP(C).19982/11 -6- names, it is clear to our mind that the said question will have to be answered in the negative in view of the later judgment of the Supreme Court in ICICI Bank Ltd. v. Prakash Kaur, (2007) 2 S.C.C. 711. The earlier judgment of the Supreme Court in Orix Finance (India) Ltd.'s case in our view has been correctly distinguished by the two learned single Judges of this court in their respective judgments. We cannot therefore endorse any action on the part of the 4th respondent in utilising the services of outside agencies like repossession agents for enforcing the terms of the agreement between the parties, whether it be hire purchase agreement or not. At the same time, we notice that the agreement executed between the petitioner and the 4th respondent contains an arbitration clause. Section 9 of the Arbitration and Conciliation Act 1996 will enable the District Court, if moved, to pass interim orders like appointment of receiver, attachment of the vehicle and for that matter any WP(C).19982/11 -7- other effective interim order which may be sufficient to protect the interest of creditors like the 4th respondent who may want to ensure that the subject matter of the agreement - the corpus is preserved, so that their security does not get eroded. 6. Coming back to the question is whether the petitioner who evidently is a defaulter in the matter of remittances of the instalments due under the agreement admittedly executed by him should be given relief sought for by the petitioner under the jurisdiction under Article 226 which is discretionary in nature. We are of the view that for securing reliefs at the hands of this Court the petitioner has to remit atleast the sum of Rs.78,522/- which is due from him as defaulted instalments as of now. We find from the averments in paragraph 4 of the writ petition itself that the petitioner sought for two months time to liquidate the defaulted instalments and promised to regularise the WP(C).19982/11 -8- repayment schedule by continuing to pay the instalments which becomes due in future. According to us, the petitioner can be given relief only subject to conditions. We therefore dispose of this writ petition issuing the following directions: 1) The petitioner shall pay within two months from today a sum of Rs.78,522/- to the 4th respondent company and shall continue to pay the instalments which becomes due in future without fail. 2) Once the petitioner complies with the above direction there will be a direction to the 4th respondent company not to resort to use of force for the repossession of the vehicle in question by seeking the services of the 5th respondent or anybody else. If the 4th respondent has any further grievance against the petitioner, they should seek redressal of such grievances in due process of law, ie., by approaching the District Court under Section 9 of the WP(C).19982/11 -9- Arbitration and Conciliation Act, or seeking appointment of an arbitrator or the regular civil court seeking appropriate other reliefs. We make it clear that if the petitioner does not comply with direction No. (1) mentioned above, this writ petition will stand dismissed. (PIUS C.KURIAKOSE, JUDGE) (C.K.ABDUL REHIM, JUDGE) ksv/-