THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO
WRIT PETITION No.15460 of 2020
ORDER:-
The petitioner, who was the owner of vehicle bearing
No.AP 07 BT 404 had availed a loan facility from the 7th
respondent which required the petitioner to pay an equated
monthly installment for 24 months which was extended to 32 months on EMI of Rs.11,117/-, which was to be completed by 07.01.2022. It is the case of the petitioner that on 13.02.2021, certain unknown people stopped the vehicle when it was on the road and forcibly took away the vehicle from the petitioner on the ground that the petitioner had defaulted in payment of the installments to the 7th respondent. It is the further case of the petitioner that despite the petitioner rushing to the office of the 7th respondent and offering to clear all the unpaid amounts, the staff of the 7th respondent did not take any interest and directed him to approach the head office of the 7th respondent, which is the 8th respondent. The petitioner further submits that he received a presale notice dated 03.02.2021 on 09.03.2021, requiring him to pay Rs.1,80,252/-, within 15 days and despite the petitioner seeking to make the payment, the staff of the 7 th respondent refused to accept the said payments.
2. The petitioner thereafter is said to have received messages, relating to the Fast Tag attached to the vehicle showing that the vehicle was plying through various toll plaza across the State. The petitioner having realized that his vehicle was being used by a stranger made a representation to the 4th RRR,J 2 W.P.No.15460 of 2021 respondent on 23.04.2021, to take action in accordance with the Motor Vehicles Act, 1988. The petitioner claims that since the 4th respondent was not taking any action against the respondents 7 and 8 and their officials, the petitioner had approached this Court by way of the present writ petition.
3. The learned Government Pleader after obtaining instructions had submitted, on 03.08.2021, that the transfer of the ownership of the vehicle in the records of the transport department, had been blocked and that neither of the respondents 7 or 8 had approached the authorities for any transfer of ownership of the vehicle. The 7th respondent filed a counter affidavit, in which it is stated that the petitioner himself had come forward and handed over the vehicle to the 7th respondent officials as he was not able to pay the installments on account of the Covid-19 pandemic. It is submitted that on account of this voluntary surrender of the vehicle, the same had been sold in an auction for a sum of Rs.52,000/-.
4. The petitioner contends that the terms of repossession of the vehicle under the hypothecation agreement between the petitioner and the 7th respondent requires issuance of a notice, upon default of payment of installments, with time being granted for making good the said default. It is only upon the failure of the petitioner to make good the defaulted amounts that the 7th respondent would go to the next step of seizing the vehicle and selling the same by way of an auction after issuing the pre-auction notice, as a last RRR,J 3 W.P.No.15460 of 2021 opportunity to the petitioner. It is the case of the petitioner that the 7th respondent did not issue a default notice and had gone ahead with the sale of the vehicle, after issuing a pre-sale notice. The petitioner contends that on account of failure of the 7th respondent in issuing the default notice, the entire exercise of seizure of the vehicle etc., is in violation of the agreement and that the petitioner would be entitled to approach this Court as the 4th respondent-Transport Authority was not willing to exercise his discretion in stopping further transfer of the vehicle. The petitioner relied upon the Judgments of the Hon'ble Supreme Court reported in Manager, ICICI Bank Ltd v. Prakash Kaur and Ors.1 The 7th respondent relied upon the Judgment of the Hon'ble Supreme Court in Magma Fincorp Limited v. Rajesh Kumar Tiwari2, on the rights of a financier to take possession of a vehicle when there is default in payment of the finance amount due to the finance year.
5. In the present case, the petitioner contends that the vehicle was forcibly taken away from him while the 7th respondent contends that the petitioner had voluntarily handed over the vehicle as he was unable to pay the installments. This is a question of fact which cannot be decided by this Court on the basis of the material placed before this Court. It would require a further enquiry before the actual truth can be ferreted out. Apart from this issue, the petitioner except roping in the 4th respondent on the ground of in action of the 4th respondent, has not made out a case as to how a writ petition would be 1 AIR 2007 SC 1349 2 (2020) 10 SCC 399 RRR,J 4 W.P.No.15460 of 2021 maintainable against the actions of the 7th respondent, which is a private organization, carrying on business with a profit motive and cannot be treated as a part of the State.
6. As far as, the 4th respondent is concerned, a counter affidavit has been filed by the 4th respondent stating that the 4th respondent had issued Memo vide R.No.558/B3/2021, dated 01.05.2021 to all the Motor Vehicle Inspectors and Assistant Motor Vehicle Inspectors in Guntur District with instructions to book a case and seize the said vehicle if it is found without valid records of ownership and that the authorities had also blocked further transactions relating to the transfer of ownership of the above vehicle.
7. In view of the above discussion and the submission of the 4th respondent that further transfer had been blocked and that the transport authorities under his jurisdiction have been directed to take necessary action whenever, the said vehicle is found travelling without ownership documents, the present writ petition is closed.
8. Accordingly, the writ petition is closed, leaving it open to the petitioner to avail of his remedies. There shall be no order as to costs.
Miscellaneous petitions, pending if any, in this Writ Petition shall stand closed.
___________________________________ JUSTICE R.RAGHUNANDAN RAO Date : 21-10-2021 RJS RRR,J 5 W.P.No.15460 of 2021 THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO WRIT PETITION No.15460 of 2021 Date : 21-10-2021 RJS