Andhra Pradesh High Court - Amravati
Uggumudi Gurunadh, vs Union Of India on 9 November, 2022
THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
WRIT PETITION No. 5207 of 2020
ORDER:
The present Writ Petition is filed under Article 226 of the
Constitution of India for the following relief/s:
".....to issue a Writ, order or direction more particularly one in the nature of Writ
of Mandamus, declaring the action of the 2nd respondent in conducting auction
for the vehicle bearing registration No.AP26 TD 2492 as illegal arbitrary and
against principles of natural justice and consequently set aside the notice issued
by the 3rd respondent dated 17.02.2020 and direct the 3rd respondent to deliver
the vehicle to the petitioner and pass such other or further order or orders ...."
2. Heard learned counsel for the petitioner, learned Government
Pleader for Transport, Roads & Buildings.
3. It is the case of the petitioner that the petitioner herein has
obtained loan of Rs.11,67,000/- and purchased Ashok Leyland Lorry vide
invoice No.NLR/VSR-1516-28 and registered before the 3rd respondent
vide registration No.AP 26 TD 2492. Thereafter, by spending a sum of
Rs.5,00,000/- he converted the said vehicle into a mobile restaurant and
also installed ovens and refrigerator in the said vehicle. That the
petitioner has obtained a sum of Rs.4,80,000/- as capital from the 2nd
respondent vide loan account No.4491513 on 31.05.2018 to run the
hotel. The Petitioner defaulted in payment of some installments, and the
said vehicle was unauthorizedly taken away / whisked away by the 2nd
respondent bank without following due procedure of law.
4. It is asserted from the affidavit that the petitioner approached the
2nd respondent for release of the vehicle as it is the only source of income
to him, for which the 2nd respondent bank insisted the petitioner to pay a
sum of Rs.1,23,000/- to regularize the loan account and to release the
vehicle. The petitioner upon believing the words of the 2nd respondent
paid an amount of Rs.1,23,000/- on 27.07.2019 and requested to release
the vehicle. But the 2nd respondent without releasing the vehicle, insisted
the petitioner to pay the entire outstanding amount of Rs.3,78,000/-
within 6 days. That the petitioner secured the said amount and
approached the 2nd respondent for the release of the vehicle then the 2nd
respondent informed that the vehicle was already auctioned and the same
was not even informed about the amount fetched through auction of the
vehicle.
5. It is also asserted from the affidavit that the 3rd respondent issued a
notice dated 17.02.2020 to the petitioner to surrender the certificate of
registration of the vehicle under Section 2(3) of the Motor Vehicle Act and
to send representation in that regard if any within seven days from the
date of receipt of the notice, failing which a fresh certificate of Registration
will be issued in the name of the 2nd respondent (Financer), cancelling the
certificate of registration held by the petitioner. The petitioner has made
a representation dated 18.02.2020 to the respondent Bank to permit him
to pay the total outstanding and requested to release his vehicle.
6. The 3rd respondent filed his counter affidavit and stated that the 2nd
respondent (financier) has made an application through the website
stating that the Motor Vehicle bearing Registration No.AP26 TD 2492
covered by an agreement of Hire Purchase/Lease/Hypothecation has
taken possession, since, the petitioner defaulted to pay the equal month
installments in terms of the agreement and requested for fresh
Registration Certificate in his favour.
7. Learned counsel for the 3rd respondent further contended that the Writ
Petition is not maintainable and it is also stated that despite notice dated
17.02.2020 received by the petitioner which was issued under Sub-Section (5) of
Section 51 of the Andhra Pradesh Motor Vehicles Act, 1988, the Writ Petitioner
did not come forward to surrender the registration certificate and eventually
prayed to dismiss the Writ Petition.
8. Learned counsel for the petitioner relied on the judgment of the
Hon'ble Supreme Court in ICICI Bank Limited v. Prakash Kaur and
others 1 , the proposition of law is that the unofficial respondent bank
should resort to a procedure recognized by law to take possession of the
vehicles in cases where the borrower who has committed default in
payment of the installments instead of taking resort to strong-arm tactics.
It is also observed that the law of the loan is governed by the Rule of Law,
the recovery of the loans or the seizure of vehicles would be done only
through legal means and banks cannot employ Goondas for taking
possession by force.
9. The concerned authority is hereby directed to issue notice to both
the petitioner as well as unofficial 2nd respondent (financer) to appear
before the authority and on such appearance, the respondent authorities
1 (200&) 2 Supreme Court Cases 711
are directed to pass appropriate orders in accordance with law basing on
the representation dated 18.02.2020 made by the petitioner herein. Till
such time the respondent authorities are directed not to affect the
certificate of registration.
10. With the above said direction the writ petition is disposed of.
Miscellaneous Petitions pending, if any, shall stand closed.
________________________________________
JUSTICE TARLADA RAJASEKHAR RAO
Date: 09-11-2022
Harin
THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
W.P.No.5207 OF 2020
Date: 09-11-2022
Harin
