Calcutta High Court (Appellete Side)
Kotak Mahindra Bank Ltd. & Anr vs Anup Kr. Jana on 13 February, 2023
13.02.2023
CRR 582 of 2016
With
Court No.35 CRAN 6 of 2017 (Old No. CRAN 4859 of 2017)
Item No. 73 With
CRAN 7 of 2021
I.T (p.a)
Kotak Mahindra Bank Ltd. & Anr.
Vs.
Anup Kr. Jana
Mr. Avik Ghatak,
Mr. Saibal Dasgupta,
Mr. Santosh Kr. Ray,
Ms. Antalina Guha.
... for the petitioners
Petitioners and the opposite parties are related vide a higher
purchase agreement. Execution of the said agreement has resulted into
the petitioner No.1 through petitioner No.2 to disburse a vehicle
purchaser loan to the opposite party, to the tune of Rs. 4,38,173.76/-.
As pointed out by Mr. Avik Ghatak, appearing for the petitioners
the 'loan-cum-guarantee agreement' has categorically specified the
terms in case of default in repayment, provisions regarding notice
pursuant to such default and the remedies available to the financier, in
this case the petitioner no.1 through petitioner no.2.
Petitioners' case is that the borrower/opposite party no.1
defaulted in repayment and as such the petitioner has undertaken
stipulated measures/steps as envisaged in the said 'agreement'.
Petitioner has further emphasized that the present criminal case
against them is only an aftermath of such steps taken by the petitioners
against the opposite party and also an endeavour by him to evade the
liability under the said 'agreement'.
The opposite party no.2 is the complainant to lodge a complaint
dated July 11, 2014, in the Court of the Ld. Additional Chief Judicial
Magistrate at Haldia, East Medinipur under Section 156 (3) Cr.P.C,
1973. The allegations in a nutshell may be narrated to be that he has
taken the car upon obtaining loan from the petitioners in 2012, hence
admitted in this case. That the petitioners have not issued a 'road
permit' to the said borrower resulting to his inability to run the vehicle
on road. Complainant/opposite party no.2 has accepted that, after
remitting some of the instalments, he could not arrange for further
repayment of loan. He further alleges that without any notice to him,
on August 24, 2013, the petitioners have recaptured and seized his
vehicle, during his absence. He has further alleged that through his
lawyer he has sent a notice to the bank dated December 3, 2013, to
undertake repayment of loan duly in future days. However, he was
informed that the ownership of the car, which was earlier seized, have
already been handed over to third person by that time. The
complainant/opposite party no.1 has thus alleged of deception and
cheating by the present petitioners in confiscation of the vehicle and
handing over it to the other party, by the present petitioners.
Inspite of due to service of notice no one is appearing in this case
on behalf of the opposite party no.2.
Mr. Ghatak for the petitioners points out to the fact that in
compliance with the terms of the said 'loan-cum-guarantee agreement'
entered into between the parties two notices were issued to the opposite
party no. 2 after he started defaulting in repayment of loan. It has also
been submitted only when the opposite party no.2 did not reply or take
any steps, the petitioners/bank has proceeded to dispose of the vehicle
the same being security to the loan which had become enforceable. It
has also been pointed out by referring to the said agreement that the
petitioner has never taken any steps for 'revival of contract' as
envisaged in the said agreement.
After emphasizing on these points on facts ultimately Mr. Ghatak
has argued on the point that during subsistence of the agreement of
higher purchase, the purchaser, i.e, the complainant/opposite party
no.2 in this case, remains to be merely a trustee of the secured
property, which is the car in this case and the ownership of the said
property during the period of subsistence of the agreement remains
with the petitioners, i.e, financiers. He says that it is a settled law that
in case the said vehicle is seized by the financier, no criminal action can
be taken against him as the goods would be deemed to be owned by him
as per law. On this he has relied on a judgment of the Hon'ble Apex
Court reported in (2013) 1 SCC 400 (Anup Sarmah vs. Bhola Nath
Sharma & Ors.)
No doubt it is a settled law that in case of a higher purchase
agreement the financier would be the owner of the property until and
unless the borrower repays the entire amount of loan with interest in
terms of the higher purchase agreement. In case of default by the
borrower the financier would be at liberty in terms of the agreement to
take appropriate steps as regards the secured property, to enforce the
loan. In the judgment referred to by the petitioner, it has been
categorically held that the during period of subsistence of loan, the
financier would be the owner in affect of the property whereas the
borrower would be only a trustee or bailee of the same. It has also been
held without any scope of doubt that in such a situation no criminal
case would be maintainable against the financier if in order to enforce
repayment of the loan, the financier undertakes steps in terms of the
loan agreement. From the materials in this case it is evident that after
default of the opposite party no.1/complainant in repayment of loan the
petitioners being the financiers of the concerned vehicle have taken
steps in terms of the agreement entered into between the parties and
have not acted beyond the scope of its lawful boundaries, in enforcing
repayment of the loan. Under such circumstances the ratio decided in
the judgment as mentioned above would squarely come to the rescue of
the petitioners in this case. Therefore, following the settled law, it can
be very well said that the present complaint would not be maintainable
against the petitioners.
On the findings as above this revision succeeds. The complaint
by the opposite party no.2 dated July 11, 2014 is hereby quashed and
set aside.
Criminal revision being CRR 582 of 2016 is allowed.
Connected applications being CRAN 6 of 2017 (Old No. CRAN
4859 of 2017) with CRAN 7 of 2021 are disposed of.
Urgent certified website copy of this order, if applied for, be
supplied to the parties upon usual undertaking.
(Rai Chattopadhyay, J.)
