IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 26TH NOVEMBER 2009 / 5TH AGRAHAYANA 1931 WP(C).No. 31112 of 2009(H) -------------------------- PETITIONER(S): --------------- JIMMY JOSEPH, KIZHAKKEDATH HOUSE, THOLAMPRA P.O., PERAVOOR, KANNUR. BY ADV. SRI.I.DINESH MENON RESPONDENT(S): --------------- 1. THE CIRCLE INSPECTOR OF POLICE, KUTHUPARAMBA. 2. THE AUTHORIZED OFFICER, INDUS IND BANK LIMITED, KANNUR. R1 BY GOVT. PLEADER SRI. BIJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: shg/ WP(C).No. 31112 of 2009(H) APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE LOAN CHART ISSUED TO THE PETITIONER. P2. COPY OF THE PERMIT ISSUED TO THE PETITIONER. P3. COPY OF THE REPORT OF THE MVI DATED 14.07.2009. P4. COPY OF THE REPRESENTATION DATED 18.07.2009. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE shg/ C.K. ABDUL REHIM, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 31112 of 2009 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of November, 2009 J U D G M E N T 1. A stage carriage vehicle belonging to the petitioner bearing registration No.KL-58-345 was taken over possession by the 2nd respondent, consequent to default committed in effecting prompt repayment in the loan account, which was availed by him for purchase of the vehicle. According to the petitioner the 1st respondent has taken the vehicle into custody on behalf of the 2nd respondent without there being any order issued by the competent authority under Section 14 (1) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). But learned Government Pleader on the basis of instructions from the 1st respondent submitted that the vehicle was never taken into custody by the 1st respondent. However, W.P.(C)No. 31112 of 2009 -2- the counsel for the 2nd respondent conceded that the vehicle was only re-possessed by the 2nd respondent, by virtue of the terms of the higher purchase agreement (Hypothecation agreement), and that the vehicle is in their custody. 2. It is submitted by counsel for the 2nd respondent that the petitioner had defaulted payment of monthly installments pertaining to the last several months and hence the vehicle was taken into custody. According to the petitioner he had approached the 2nd respondent with a request for permitting payment of the defaulted arrears in four (4) equal monthly installments, and such request was not acceded to. The counsel for the petitioner expresses willingness to pay off the liability pertaining to the defaulted installments along with expenses and over due interest, if any liable, within a reasonable time. Learned standing counsel appearing for the 2nd respondent conceded that the vehicle can be given back possession to the petitioner on clearing payment of the defaulted installments along with other amounts due. W.P.(C)No. 31112 of 2009 -3- 3. It is noticed that the vehicle was taken possession by the 2nd respondent not by virtue of any proceedings under the SARFAESI Act. But the contention of the petitioner is that the 2nd respondent has taken possession of the vehicle without recourse to law in an illegal manner. In view of the concession now made by the 2nd respondent regarding release of the vehicle, I am not entering into any finding regarding maintainability of this writ petition, or not considering the question as to whether the possession taken over was legal or not. 4. Having considered submissions on both sides, the writ petition is disposed of directing the petitioner to make payment of the defaulted installments along with over due interest and expenses if any liable, in two (2) equal monthly installments, falling due on or before 15.12.2009 and on or before 15.01.2010. The 2nd respondent will release possession of the vehicle on payment of the defaulted installments as conceded above. It is made clear that the petitioner is at liberty to approach the 2nd respondent to W.P.(C)No. 31112 of 2009 -4- persuade them for release of the vehicle, even after payment of the first installment. C.K. ABDUL REHIM JUDGE shg/