IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 31ST MAY 2010 / 10TH JYAISTHA 1932 WP(C).No. 10524 of 2010(M) ------------------------------------------------- PETITIONER(S): ---------------------- SUNIL KUMAR V.P., S/O. PADMANABHA PILLAI, AGED 39, 'ANANDASREE', THYCATTUSSERRY VILLAGE, FROM 'LAXMI NIVAS', PANAVALLY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. BY ADV. DR.V.N.SANKARJEE RESPONDENT(S): ------------------------ 1. THE SUB INSPECTOR OF POLICE, POOCHACKAL. 2. THE MANAGER, H.D.F.C. BANK LTD., KOTTAYAM BRANCH, KOTTAYAM. 3. MR.VIVEK SAGAR, MANAGER, H.D.F.C.BANK LTD., KOTTAYAM BRANCH, KOTTAYAM. 4. THE SUPERINTENDENT OF POLICE, ALAPPUZHA. R1 & R4 BY GOVERNMENT PLEADER SHRI T.K. VIPINDAS. ADV. SRI.T.RAJESH FOR R2-3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/05/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C).NO.10524 OF 2010 M PETITIONER'S EXHIBITS: EXT.P1TRUE COPY OF THE COMPLAINT DATED 25.3.2010 LODGED BEFORE THE 1ST RESPONDENT BY THE PETITIONER. EXT.P2TRUE COPY OF THE COVERING LETTER DATED 24.3.2010 ISSUED TO THE 4TH RESPONSDENT. EXT.P3TRUE COPY OF THE REGISTRATION RECEIPTS (TWO IN NUMBER) ISSUED FROM THE POST OFFICE. EXT.P4TRUE COPY OF THE R.C. BOOK BEARING NO.KL-42 B 1907. EXT.P5TRUE COPY OF THE INSURANCE POLICY. EXT.P6TRUE COPY OF THE INVOICE AND CASH BILL DATED 3.11.09. EXT.P7TRUE COPY OF THE LOAN PARTICULARS. EXT.P8TRUE COPY OF THE FLIGHT TICKET DATED 24.3.2010. EXT.P9TRUE COPY OF THE NOTICE DATED 18.1.2010. EXT.P10 TRUE COPY OF THE RECEIPT DATED 27.1.2010. EXT.P11 TRUE COPY OF THE NOTICE DATED 20.3.2010 SENT BY REGISTERED POST ON 24.3.2010. EXT.P11(A) TRUE COPY OF THE ENVELOP ISSUED BY REGISTERED POST. RESPONDENTS' EXHIBITS: EXT.R2(A) TRUE COPY OF THE LETTER ISSUED BY THE CO-OBLIGANT; PETITIONER'S WIFE SURRENDERING THE VEHICLE. // True Copy // PS to Judge K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. -------------------------------------------------- W.P(C). NO. 10524 OF 2010 M --------------------------------------------------- Dated this the 31st May, 2010 JUDGMENT K.M. Joseph, J. Petitioner has approached this Court seeking the following reliefs: “i) Issue a writ of mandamus or any other appropriate writ or order directing respondents 1 to 4 to recover the vehicle bearing No.KL-32 B 1907 (Tavera B4) from respondents 2 and 3 and deliver to the petitioner. ii) Issue a writ of mandamus or any other appropriate writ or order directing respondents 1 and 4 to afford adequate protection to the life and properties of the petitioner and his family members averting the illegal activities of respondents 2 and 3.” 2. Briefly put, the case of the petitioner is as follows: WPC.10524/2010 M 2 Petitioner is the registered owner of a vehicle. There was a hire purchase agreement between the petitioner and second respondent Bank. It is his case that the vehicle was forcibly re- possessed. Hence the reliefs sought. 3. A Counter Affidavit is filed by the second respondent. His case is that the vehicle was voluntarily surrendered by the wife of the petitioner. Though the learned counsel for the petitioner would submit that in similar circumstances Courts have interfered, we do not think that the Writ Court should enter into a fact finding enquiry. A Reply Affidavit has been filed wherein, according to the petitioner, the version of the second respondent is not correct. That is to say, according to him, there is no voluntary surrender and it was a forcible re-possession. Learned counsel for the petitioner also relied on the following Judgments of this Court: 1) Shibi Francis v. State of Kerala (2007 (3) KLT 923). WPC.10524/2010 M 3 2) Bhahuleyan v. State of Kerala (2007 (4) KLT 402). 3) ICICI Bank Ltd. v. Prakash Kaur And Others ((2007) 2 SCC 711). 4. We do not see how, if there is a genuine surrender as claimed by the second respondent Bank, these decisions will help the petitioner. It is a different matter if it is shown that there is no genuine surrender as such, but it is a camouflage as such and actually what has happened was a forcible re- possession. But, in a writ jurisdiction, we do not think it appropriate for us to enter a finding of fact in this regard and we would think that the petitioner may seek relief in the appropriate and competent Forum. Learned counsel for the petitioner brings to our notice that there is a complaint filed before the Judicial First Class Magistrate Court, Cherthala, and that the learned Magistrate has referred the matter under Section 156(3) of the Cr. P. C. to the police. We dispose of the Writ Petition leaving it open to the petitioner to approach the competent Forum and WPC.10524/2010 M 4 also directing that the first respondent shall necessarily abide by the directions of the learned Magistrate and take steps as per law in terms of the directions of the learned Magistrate. Sd/= K.M. JOSEPH, JUDGE Sd/= M.L. JOSEPH FRANCIS, JUDGE kbk. // True Copy // PS to Judge