AO/343/2007 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No.343of2007 With CIVIL APPLICATION No.12309of 2007 In APPEAL FROM ORDER No 343 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= ICICI BANK LTD. THRO' LALIT VYAS - Appellant(s) Versus HARSHAD PANCHAL - Respondent(s) ========================================================= Appearance : MR CR ABICHANDANI for Appellant(s) : 1, MR BM MANGUKIYA for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 28/08/2008 ORAL JUDGMENT 1. Present Appeal from Order is filed by the appellant-original defendant to quash and set aside the order dated 16.04.2007 passed by the learned AO/343/2007 2/7 JUDGMENT Chamber Judge, Court No. 5, City Civil Court, Ahmedabad in Civil Suit No. 2117 of 2004, by which the learned City Civil Court has allowed the Notice of Motion restraining the petitioner Bank from transferring/ alienating and / or handing over the possession of the Motorcycle in question. 2. Respondent had taken loan from the petitioner Bank for purchase of the Motorcycle. An agreement was entered into and it was agreed by the respondent to repay the same by monthly installment. As the loan amount was due and payable and installments were not paid, the Bank initiated the proceedings to recover the said amount by attaching and / or taken custody of the said Motorcycle to realize the amount by selling the same and at that stage the respondent herein filed Civil Suit No. 2117 of 2004 for declaration and injunction declaring that nothing is due and payable and he has paid monthly installment regularly, however the petitioner Bank has not given true and correct statement of account. In the said suit a Notice of Motion was taken out restraining the petitioner Bank from transferring and / or AO/343/2007 3/7 JUDGMENT selling the vehicle in question. Initially, the learned City Civil Court granted the ad-interim injunction below Notice of Motion, which subsequently came to be confirmed by the learned City Civil Court by impugned order noting the submission on behalf of the plaintiff that plaintiff is ready and willing to pay the dues of the defendant, if the defendant gives correct account and also the loan agreement. Being aggrieved and dissatisfied with the impugned order passed below Notice of Motion by the learned City Civil Court, the appellant has preferred the present Appeal from Order. 3. Shri Abhichandani, learned advocate appearing for the appellant has submitted that at present the Motorcycle in question is lying idle with the appellant and neither the respondent is permitting the appellant to sale the said Motorcycle and realize the amount nor the respondent-original plaintiff is paying the amount of installments and taking away the custody of the Motorcycle. It is submitted that by keeping the Motorcycle as it is i.e. idle, the condition of Motorcycle is deteriorated and at AO/343/2007 4/7 JUDGMENT present against the original valuation of the Motorcycle Rs. 45,000/- it is at present approximately Rs. 12,000/- to Rs. 15,000/-. Therefore, it is requested to allow the present appellant to sale the Motorcycle in question and realize the amount and to credit the same in the loan account of the original plaintiff. It is submitted that at present inclusive of interest and penal interest as per the agreement approximately an amount of Rs. 1,00,000/-(One lac) is due and payable by the respondent-original plaintiff. 4. Shri B.M. Mangukiya, learned advcoate for the respondent-original plaintiff has submitted that according to the respondent the condition of the Motorcycle is such that there are only frames and it will not be in the interest of plaintiff to take back now the Motorcycle. It is specifically denied that approximately an amount Rs. 1,00,000/-(One lac) is due and payable. It is submitted that the defendant- original plaintiff has regularly paid the installment and at the relevant time also he was ready and willing to pay regular installments, if true and AO/343/2007 5/7 JUDGMENT correct amount had been given. Therefore, it is submitted that the learned Chamber Chamber Judge has rightly allowed the Notice of Motion and, therefore, it is requested to dismiss the present Appeal from Order. 5. Having heard the learned advocate for the respective parties and considering the dispute between them and controversy involved in the suit and considering the fact that by keeping the vehicle / Motorcycle idle it will not be in the interest of either parties. It appears that on one hand the plaintiff is not taking the custody / possession of the Motorcycle and making the payment of due installments and on the other hand he is not permitting the appellant Bank to sale the vehicle / Motorcycle and realize the amount and the necessary consequence is that neither of them are benefited and the condition of the Motorcycle is deteriorated. Under the circumstances, the appellant cannot be restrained from selling the Motorcycle and realizing the amount and credit the said amount in the loan account of the respondent-plaintiff. However, the AO/343/2007 6/7 JUDGMENT interest of the plaintiff is also required to be protected to see that the Motorcycle is not sold at throw away price and, therefore, at the time of final sale after receiving highest offer, the Bank shall inform the original plaintiff informing the highest offer and the plaintiff should be given an opportunity to bring the buyer who is ready to offer more than the highest offer received. Even, the auction also can be held in the presence of the plaintiff so as to avoid any further allegation and counter allegation. 7. For the reasons stated above, the Appeal from Order succeeds. The impugned order dated 16.04.2007 passed by the learned Chamber Judge, Court No. 5, City Civil Court, Ahmedabad in Civil Suit No. 2117 of 2004 is hereby quashed and set aside and the appellant-original defendant is permitted to sale the Motorcycle in question by holding auction and the same shall be with prior intimation to the original plaintiff and same shall be done in the presence of the plaintiff and on getting the highest offer, the original plaintiff shall be given an opportunity to AO/343/2007 7/7 JUDGMENT bring the buyer who can offer more price than the highest offer. Whatever amount is realized on selling the said Motorcycle, the same shall be credited in the account of the original plaintiff and the appellant-original defendant is directed to give the statement of account to the plaintiff accordingly. Appeal from Order is accordingly allowed to the aforesaid extent. There shall be no order as to cost. 8. In view of the disposal of the Appeal from order, no order in Civil Application. (M.R. Shah, J.) Kaushik