IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 13TH AUGUST 2008 / 22ND SRAVANA 1930 WP(C).No. 21657 of 2008(C) -------------------------- PETITIONER: ------------ SABU, 40 YEARS, RESIDING AT .D3, KESTON TOWER NEAR STYLE PLUS, KOWDIAR, THIRUVANANTHAPURAM. BY ADV. SRI.M.R.SASITH SRI.M.R.SARIN RESPONDENTS: ------------- 1. ASSISTANT COMMISSIONER, CANTONMENT POLICE STATION, THIRUVANANTHAPURAM. 2. VENKITESH GANAPATHY, DEPUTY MANAGER, HDFC.BANK LTD., KESTON TOWER NEAR KALABHAVAN THEATRE, VAZHUTHAKADU, THIRUVANANTHAPURAM. 3. BIJU JOHNS, SENIOR MANAGER, HDFC.BANK LTD., KETSON TOWER NEAR KALABHAVAN THEATRE, THIRUVANANTHAPURAM. BY ADV. SRI.SOORAJ T.ELENJICKAL FOR R2,3 SRI.M.A.JOSEPH MANAVALAN FOR R2,3 SR.GOVT. PLEADER SRI.BENJAMIN PAUL-R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 21657/08 APPENDIX PETITIONER'S EXTS. EXT.P1 - TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 9.7.2008. /TRUE COPY/ K.BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. ----------------------------------------- W.P.(C) NO. 21657 OF 2008-C ----------------------------------------- Dated 13th August, 2008. JUDGMENT Balakrishnan Nair, J. The petitioner availed a loan from the Thiruvananthapuram branch of the H.D.F.C. Bank Ltd., for purchasing a Skoda car. He committed default in paying a few monthly instalments. Though he was willing to clear the defaulted instalments, the 2nd respondent moved the criminal court by filing a complaint against him under Section 138 of the Negotiable Instruments Act. The respondents 2 and 3, who are respectively the Deputy Manager and Senior Manager of the said Bank, threatened the petitioner that they will take the vehicle by force, unless he surrenders the same to them. On 13.6.2008, the 2nd respondent along with five local goondas stopped the petitioner's vehicle near Kowdiar and tried to take it by force. Later, on 18.6.2008 the 2nd respondent along with eight goondas, armed with deadly WPC 21657/2008 2 weapons, stopped the petitioner's vehicle near Nanthencode. They threatened to kill the petitioner unless he surrenders the vehicle to the 3rd respondent. Immediately, the petitioner approached the 1st respondent Assistant Commissioner of Police and requested for police protection to his life and property. Again, on 9.7.2008, while the petitioner was returning home, the respondents 2 and 3 along with three goondas stopped his car at Maruthankuzhi and threatened to kill him, unless he surrenders the vehicle to them. The petitioner submits, again, the respondents 2 and 3 along with some musclemen came to his flat and threatened his wife that they will kill her also. Though the petitioner approached the 1st respondent by filing a complaint on 9.7.2008, seeking police protection, no effective steps were taken due to the influence of respondents 2 and 3. Ext.P1 is the said complaint. The police have registered a crime against respondents 2 and 3, based on the complaint filed by him. The respondents 2 and 3 have moved this Court, seeking anticipatory bail, it is submitted. The petitioner submits, the threat against his life and also to take the vehicle by force is continuing and therefore, this writ petition is filed, seeking the WPC 21657/2008 3 following relief: “(i) issue a writ of mandamus or any other appropriate writ, order or direction, commanding the 1st respondent to afford adequate and effective police protection to the life and property of the petitioner and his family members from respondents 2 and 3 and their henchmen.” 2. The respondents 2 and 3 have filed a counter affidavit, denying the allegations against them. It is submitted that the allegation that they attempted to take forcible repossession of the vehicle is false. No cause of action has arisen for the petitioner to invoke the extra- ordinary jurisdiction of this Court. Everything that is narrated in the petition is only a cock and bull story. The petitioner has failed to pay the instalments continuously and as on this date, the total amount of defaulted instalments will come to Rs.1,76,757/-. The cheques issued by the petitioner for the monthly remittances were dishonoured and prosecution under Section 138 of the Negotiable Instruments Act has been launched against him. The petitioner being aware of the legal steps taken by the Bank to recover the loan amount, has come up with this petition, making false allegations against the party respondents and therefore, they pray for dismissal of the writ petition. WPC 21657/2008 4 3. The learned Government Pleader, upon instructions, submitted that on the basis of the information lodged by the petitioner, a crime has been registered against respondents 2 and 3 under Sections 341 and 506 read with Section 34 of the I.P.C., and under Section 27 of the Arms Act. 4. The learned counsel for the petitioner relied on the decision of the Apex Court in ICICI Bank Ltd. v. Prakash Kaur [(2007)2 SCC 711] and submitted that the financier cannot resort to strong arm tactics for recovering the loan amount. He further submitted that the vehicle purchased under hire-purchase agreement cannot be seized using force. The financier has to take recourse to the remedies available under law. The learned counsel also relied on the decision of this Court in Bhahuleyan v. State of Kerala [2007(4) KLT 402]. In the said decision also, the employment of musclemen for repossessing the vehicles covered by hire-purchase agreements was deprecated. 5. The learned counsel for respondents 2 and 3 on the other hand, submitted that the decision of the Apex Court mentioned above takes care of the rights of the financier also. Special reference was made to WPC 21657/2008 5 para 13 thereof. The learned counsel also submitted that this Court may not exercise its discretionary jurisdiction in favour of the defaulter. It is further pointed out that the petitioner has remedies available before the civil court. Therefore, it is unnecessary for this Court to invoke its discretionary jurisdiction. 6. The contention of the learned counsel for respondents 2 and 3 that the writ petition is not maintainable, has only to be rejected. The petitioner has approached this Court, alleging inaction from the part of the police in protecting his life and property. For that the remedy available under the Code of Civil Procedure is not efficacious. Further, respondents 2 and 3 have no right or authority to employ strong arm methods to repossess the vehicle, to recover the loan amount. They have to respect the law of the land and take recourse to the remedies available under law. They cannot be a law unto themselves. We strongly deprecate the strong arm methods employed by the financiers using musclemen, to recover the loan amounts and repossess the vehicles. The respondents 2 and 3 submit that in this case they have not employed such methods to recover the loan amount and they have WPC 21657/2008 6 no intention to do that. The police have to take effective steps to nip in the bud the attempts made by new generation banks to recover the loan amounts using musclemen. Now, they have effective remedies under law, including those under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. In the result, the Writ Petition is allowed. If the respondents 2 and 3 or the persons engaged by them use strong arm methods to threaten the petitioner to recover the loan amount, he may inform the police officers concerned. In that event, they shall take effective steps to protect his life and property. It is made clear that this judgment will not affect the right of respondents 2 and 3 to move the civil or criminal courts for appropriate reliefs. K.BALAKRISHNAN NAIR, JUDGE. M.C.HARI RANI, JUDGE. Nm/