IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.936 of 2008 SHYAM KISHORE MISHRA s/o Ram Awadhesh Mishra Resident of village Sanjat, P.S.Bhagwanpur District Begusarai…...Petitioner. Versus 1.The State of Bihar. 2.The Superintendent of Police, Begusarai. 3.The Officer In-charge, Barauni Police Station. 4.The Managing Director, TATA Motors Ltd., Mumbai. Through Maurya Motors Ltd. Plot No.C-1, Industrial Area, Pataliputra Patna – 800013. 5.The Manager Maurya Motors Ltd., Plot NJo.C-1, Industrial Area Pataliputra, Patna 800 013. 6.The Branch Manager, Maurya Motors Ltd. Near Subhash Chowk, By-Pass Road P.S. Begusarai T own District Begusarai..…. Respondents. ----------- For the Petitioner : Mr. Vivekanand Prasad Singh., Adv. For the State : Md.Obaidullah, A.C. to G.p.VI. For the Res.Nos.6 & 7 : M/s. Jitendra Prasad Singh & A.K. Sharma, Advs. 6. 06.05.2009 Petitioner’s prayer is for a direction to the Superintendent of Police, Begusarai for ensuring the registration of F.I.R. vide Annexure-9 which was written complaint dated 2nd August 2008 by the petitioner sent to the Superintendent of Police, Begusarai. In the petition, a compensation of Rupees two lac was also made, but it is pointed out that vide order dated 30th September 2008, that prayer was withdrawn for filing a separate writ for that. Petitioner’s case is that he had taken a truck bearing Regd.no.BR-1D 9411 on hire purchase from Respondent No.4 TATA Motors Ltd., Mumbai. The vehicle was registered in the name of petitioner. Monthly instalments @ Rs.18,000/- was fixed and it was being paid. It is stated that from July 2007 to November 2007 the truck did not ply due to flood in 3—4 districts of the State and, hence, the instalments could not be 2 paid, but five instalments were subsequently paid in the months of November and December 2007 on the dates 2nd November 2007, 14th November 2007, 21st November 2007, 30th December 2007 and 31st December 2007 and, thereafter, the petitioner was plying the truck. It is further stated that the truck developed some crack in the chassis, hence, it was sent to a garage for repairs and as soon as it came out of the garage after repairs and it w as near Zero-miles, Begusarai, the Financer with the help of some musclemen took possession of the truck due to default in payment of instalments. Naming two persons, i.e. Nandu Singh and Bablu Singh, as the persons who were involved in the act of taking the truck in possession allegation was made in the complaint dated 2nd August 2008 (Annexure-9), which is said to have been sent to the Superintendent of Police, Begusarai stating that the officer In-charge was not instituting a case on the complaint. It is due to these reasons that the petitioner has approached this Court for a direction to the Superintendent of police for institution of an F.I.R. at the concerned police Station, vide the complaint. The petitioner has stated that the truck was purchased on hire purchase, but any agreement of hire purchase is not filed with the petitioner. During hearing, when this question arose, learned counsel for the petitioner says that the petitioner has no agreement with him, hence, he cannot produce such agreement. 3 The very maintainability of this writ petition was opposed by the Respondent no.1, state of Bihar and the respondent no.5 Maurya motors Ltd. stating that TATA Motors Ltd. who are said to be the financer for the hire purchase have not been made party in this writ application and, thus, this application suffers with the defect of non-joinder of necessary party. In the petitioner’s complaint, allegation has been made against some persons, namely Bablu Singh and Nandu Singh who are said to be involved in the act of taking possession of the vehicle, but the maintainability of this writ petition is also assailed on the ground that they have not been made party in this writ application. Annexure-A to the counter affidavit of respondent nos.2 and 3 is referred to. This Annexure-A, S.D.Entry No.168 dated 11th February 2008 is report of the Officer In-charge which mentions that on 11th February 2008 one Purushottam Singh, authorized agent of TATA Motor Ltd. took possession of the vehicle due to non-payment of instalment and an information of this fact was also given to the Police Station. Learned counsel for the respondents also refers to Annexure-B to the counter affidavit which is a report darted 30th November 2008 of the Officer In-charge of the Police Station which mentions that the complaint sent by the petitioner to the Superintendent of police was sent to the police Station and it was enquired into by the Police Officials there and, on enquiry, the Police Officials found 4 that the vehicle in question had been taken possession of by the hiring financer i.e. TATA Motors Ltd. and that it did not involve any question of forcible or illegal possession and due to the dispute of non-payment of instalment the vehicle was taken in possession. Learned counsel for the respondents submitted that in a hire purchase, the agency which gives the vehicle on hire purchase remains with the possession of the vehicle and it is given to the hire purchaser till and during the period when her continues the payment of instalment of hire purchase agreement. If the instalments are not paid, the financer is entitled to take possession of the vehicle in question. Learned counsel for the petitioner has submitted that whatever be the fact but the Officer In-charge was bound to institute a case upon the complaint filed by the petitioner, but this was opposed to by the respondents who have submitted that the vehicle was admittedly seized by the TATA Motors Ltd. who had financed to the petitioner under hire purchase and the complaint by the petitioner was made after six months with a view to save him from the liability of instalments of these periods. It is also submitted that a preliminary enquiry was also made in this case which indicated that there was dispute of non- payment of instalments and it was a civil dispute. Over and above, it was pointed out that in this application, it was pointed out that in this application the main grievance is against the 5 financer TATA Motors Ltd. which has not been made a party properly and, hence, this petition cannot proceed in his absence. No doubt, TATA Motors Ltd, Mumbai has been made respondent in this case as Respondent no.4, but he has been made as a party through Maurya Motors Ltd. Maurya Motors Ltd. is also separately made party as respondent no.5. Nobody is appearing for the respondent no.4. Learned counsel for the respondent no.5 submits that Maurya Motors Ltd. is an independent identity which sells the vehicles and it has sold the vehicle in question on receipt of full payment and that it had no concern with the payment or non-payment of instalments by the purchaser of the vehicle. Thus, the financer is said to be TATA Motors Ltd. which has not been made party properly and is not before this Court. In support of his submission, learned counsel for the petitioner cited a judgment of the Hon’ble Supreme Court in the case of Ramesh Kumari Vs. State of Delhi and others, reported in 2006(2) SCC 677. In that case, the appellant was in possession of the land in question. Stay order was granted by the High Court protecting the possession of the appellant in respect of the said property on 14th August 1997 and it was extended by another order dated 10th September 1997 in presence of other side. But the respondent nos. 4 to 9 broke open the lock and removed various articles on 9th September 1997 and 10th September 1997. In those circumstances the appellant had filed a 6 complaint before the police and had prayed for registration of F.I.R. which was refused. In that situation, the Hon’ble Supreme Court held that it was the duty of the Police Officer to register an F.I.R. In that context, the Hon’ble Supreme Court held that when a cognizable offence is alleged, it is the duty of the Police Officer to lodge an F.I.R. Citing the decisions, learned counsel for the petitioner argued that in the instant case before this Court, cognizable offence was also alleged that the vehicle was forcibly taken possession of, hence, the Police Officer was bound to lodge F.I.R. But I feel that the ratio as decided by the Hon’ble Supreme Court in the cited (supra) case was decided under different factum of circumstances where court’s order was violated. Whereas in the instant case, the facts and circumstances are entirely different and they indicated that the petitioner is trying to use the process of court for making out gains for his own disputes which are of civil nature and they are creation of petitioner’s whims. The petitioner also did not inform the Police for six months after taking possession of the vehicle. After six months, he files a petition before the Superintendent of Police and that by a registered post. The Superintendent of Police sent the complaint to the Officer In-charge who duly enquired into the matter and found that the allegations were not genuine. It is also pointed out by the learned counsel for the respondents that the financer did not take the vehicle in any illegal manner but at the time of taking possession of the vehicle, 7 the police authorities were properly informed that the vehicle was being taken possession of by the Financer Company and the police registered Station Diary Entry at the Police Station. It is submitted that the petitioner has stopped payment of instalments for several months and he is still in continuous default and he is using the litigation as a pressure tactics upon the financer. Learned counsel for the petitioner also cit ed one another judgment of the Hon’ble Supreme Court in the case of ICICI Bank Ltd. Vs. Prakash Kaur and others, reported in 2007(2) SCC 711. In this case the Hon’ble Supreme Court has deprecated the practice of hiring agent through musclemen and has observed that this practice should be discouraged. Learned counsel for the petitioner argued that in this case, the vehicle has been seized by the financer by using musclemen. But the facts of the case do not show like this. It is evident that the vehicle was seized after due information to the Police by the authorized agents of the financer and the Police had also recorded S.D.Entry at the Police Station regarding the factum of seizure of the vehicle due to default in payment of instalments. It was submitted by the respondent’s counsel that under the hire purchase agreement the financer remains in possession of the vehicle till all the instalments under the hire purchase are paid and in the terms of the hire purchase agreement the authorized financer remains authorized to take possession of the vehicle in case of non-payment of instalments. 8 In this case, the petitioner has not filed the hire purchase agreement and in course of argument when this question arose, it was clear submission on behalf of petitioner that he is not in possession of any hire purchase agreement. Thus, this application fails on facts as well as on the ground of non- maintainability due to non-joinder of necessary party i.e. financer who has not been made a party nor represented in this case. In the result, this application is dismissed Jay/ ( C. M. Prasad. J. )