M/S Au Small Fin. Bank Ltd. ... vs The State Of Mah. Thr Pso Ps Washim ...
2022 Latest Caselaw 11318 Bom

                               1



     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               NAGPUR BENCH, NAGPUR.


         CRIMINAL WRIT PETITION NO. 451/2021


     M/s AU Small Finance Bank Limited,
     Formerly known as M/s. AU.
     Financiers (India) Limited, having its
     registered office at 19 A, Dhuleshwar
     Garden, Ajmer Road, Jaipur 302001
     (Rajasthan).

     Having its Branch Office at Madhu Malti
     Vihar 1st Floor Necklace Road, Ratanlal
     Plot Square, Akola (Maharashtra),
     through its authorized person Mr. Vijay
     S/o. Ramdas Kamble.

                                               ... PETITIONER

                           VERSUS

1.   State of Maharashtra through
     Officer In Charge, Police Station,
     Washim City, Dist. Washim.

2.   Shri Arun Harichandra Rathod
     Aged 38 years, Occ. Service,
     R/o. at Sarkinhi, Post Zodga,
     Ta. Barshitakli, Dist. Akola.



                                          ... RESPONDENTS
                                    2

_____________________________________________________________
       Mr. Winy Daigarane, Advocate h/f Mr. Aktar Ansari, Advocate
       for petitioner.
       Mrs. M. H. Deshmukh, APP for respondent No.1/State.
       Mr. Pratik B. Ganorkar Advocate h/f Mr. Raju Kadu, Advocate
       for respondent No. 2.

______________________________________________________________

     CORAM                                  : VINAY JOSHI, J.
     RESERVING THE JUDGMENT ON              : 23/08/2022
     PRONOUNCING THE JUDGMENT ON            : 09/11/2022.




JUDGMENT :

RULE. Rule is made returnable forthwith.

2. Heard finally by consent of both the parties.

3. The petitioner - Finance Company raises a challenge to the

order dated 18.02.2021 passed in Special Case No. 44/2022 below Exh.

3, by which the Special Judge has declined to grant permission to sell a

motor vehicle.

4. The facts in brief are that respondent No.2 Arun had

purchased a motor vehicle i.e. Maruti Swift Car by raising finance from

the petitioner under Hypothecation agreement. Later on, Arun sold

said vehicle to one Santosh Thoke by executing an agreement as well as

handed over possession to him. Later on, said vehicle was seized from

the possession of Thoke in Crime No. 421/2018 alleging that it was

used in a case of kidnapping. The provisions of Maharashtra Control of

Organized Crime Act, 1999 ('MCOC Act') were also invoked in said

crime. The purchaser Arun has applied to the concerned Magistrate in

terms of Section 457 of the Code of Criminal Procedure ('Code') for

temporary custody of vehicle which was seized in crime No. 42/2018.

The learned Magistrate granted interim custody to Purchaser Arun vide

order dated 05.01.2019.

5. Admittedly, petitioner - Financier has also applied for

interim custody of vehicle to the Special Court of Amravati. The said

application was allowed by which Financier was permitted to have

interim custody of vehicle on certain terms and conditions vide order

dated 29.07.2020. Later on, again Financier applied to the Special

Court of Washim seeking permission to sell the vehicle, however it was

rejected vide order dated 18.02.2021 which is impugned herein.

6. The learned counsel for petitioner made exhaustive

submissions on the point that the vehicle was hypothicated to the

petitioner Finance Company under certain terms and conditions. The

borrower Arun has not paid the loan installments as well as sold vehicle

to one Thoke in violation of the terms of agreement. It is submitted

that the Special Court has already granted interim custody to the

petitioner, however rejected permission to sell by stating that the

vehicle may be required in the trial for identification. According to the

petitioner, the purpose of identification can be served by producing

photographs and description Panchanama. It is submitted that there

are every chance of vehicle being ruined if kept lying idle.

7. The respondent No. 2 Arun resisted claim by stating that he

is ready to pay loan installments and therefore, permission for sale

cannot not be granted. He has produced the order of learned

Magistrate dated 05.01.2019 passed in MCC No. 323/2018 by which he

was permitted to take interim custody.

8. It reveals that the order of the Magistrate has not been

challenged by the Financier. Despite that, the Financier has applied to

the Special Court of Amravati after invocation of MCOC Act for custody

which was allowed. The situation emerges that there are two

inconsistent orders meaning thereby the Magistrate has granted interim

custody to borrower whilst the Special Court has granted to Financier.

Be that as it may, the Financier has further sought permission to sell the

vehicle which was rejected.

9. As a matter of fact, during existence of order of the

Magistrate, the Special Court has passed an order of interim custody

giving rise to inconsistent finding. As a matter of fact, the Financier

ought to have brought to the notice of the Special Court about

existence of order of the Magistrate while seeking custody. The order

dated 29.07.2020 of the Special Court under which interim custody

was granted indicates that it was not brought to the notice that already

contrary order is in existence. The para Nos. 8 and 11 of the order bear

reference that borrower Arun has not made a contrary claim for the

custody of vehicle. Under such impression, the Special Court has

decided the application for grant of custody.

10. There is sanctity attached to the judicial order passed by the

Magistrate on 05.01.2019 of granting interim custody to the borrower.

Therefore, said fact ought to have brought to the notice of the Special

Court while granting interim custody to the Financier. When said

inconsistency is noticed by this Court, it is necessary to bring the things

in order. Therefore, it is required to decide the matter afresh. The

respondents also took objection about jurisdiction of the Special Judge,

Washim in passing impugned order. Keeping in mind the earlier order

of the Magistrate dated 05.01.2019, the jurisdictional Special Court

shall decide afresh the application for interim custody as well as

permission to sell the vehicle on its own merits.

11. All the objections raised in this application are kept upon.

12. Petition stands disposed of in above terms.

13. Both sides are directed to appear before the Special Court

of Washim on 28.11.2022 for which no separate notice shall be issued.

(VINAY JOSHI, J.)

Gohane Digitally signed by JITENDRA JITENDRA BHARAT BHARAT GOHANE GOHANE Date:

2022.11.11 11:35:38 +0530