Suhara Aboobacker vs The District Police Chief
2021 Latest Caselaw 2863 Ker

Citation : 2021 Latest Caselaw 2863 Ker
Judgement Date : 27 January, 2021

Kerala High Court

Suhara Aboobacker vs The District Police Chief on 27 January, 2021

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

              THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

    WEDNESDAY, THE 27TH DAY OF JANUARY 2021 / 7TH MAGHA, 1942

                      W.P.(C) No.26266 OF 2020(G)


PETITIONER:

               SUHARA ABOOBACKER,
               AGED 46 YEARS, W/O.ABOOBACKER,
               VEETTILAVALAPPIL HOUSE,
               PUNNAYOORKULAM P.O., THRISSUR.

               BY ADV. SRI.I.DINESH MENON

RESPONDENTS:

      1        THE DISTRICT POLICE CHIEF,
               OFFICE OF DISTRICT POLICE CHIEF,
               CIVIL STATION P.O., THRISSUR-680 003.

      2        THE CIRCLE INSPECTOR OF POLICE,
               VADAKKEKKAD, VADAKKEKKAD P.O.,
               THRISSUR-679 562.

      3        THE MANAGER,
               CHOLAMANDALAM INVESTMENT AND FINANCE,
               2ND FLOOR, THEKKEKKARA COMMERCIAL COMPLEX,
               CIVIL LINE ROAD, PADIVATTOM, KOCHI-682 024.

      R1&R2    BY SMT.K.AMMINIKUTTY, SENIOR GOVERNMENT PLEADER
      R3       BY ADV. SRI.BINOY VASUDEVAN, CHOLAMANDALAM INVESTMENT
               AND FINANCE

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
27.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.26266 OF 2020(G)
                                      -2-


                                JUDGMENT

The petitioner, who is a registered owner of a stage carriage

bearing registration No.KL-46/P-5531, on the strength of hire

purchase agreement with Cholamandalam Investment and

Finance, has filed this writ petition under Article 226 of the

Constitution of India, seeking a writ of mandamus commanding

respondents 1 and 2 to afford adequate and sufficient protection to

the life and property of the petitioner from the threat of the men

engaged at the instance of the 3rd respondent Manager of the

Financier. The petitioner has also sought for a writ of mandamus

commanding respondents 1 and 2 to grant protection against the

forceful possession of the stage carriage vehicle bearing

registration No.KL-46/P-5531 by the 3rd respondent or his men.

2. On 30.11.2020, when this writ petition came up for

admission, this Court issued notice before admission to the

respondents. The learned Government Pleader took notice for

respondents 1 and 2. Urgent notice by special messenger was

ordered to the 3rd respondent. This Court granted an interim order,

whereby the 2nd respondent was directed to ensure that law and

order is maintained. The said interim order, which was extended

from time to time, is still in force.

W.P.(C) No.26266 OF 2020(G)

3. A counter affidavit has been filed on behalf of the 3 rd

respondent. Paragraphs 6 to 10 of the counter affidavit read thus;

"6. I respectfully submit that there was huge arrears in the loan account. During the year 2018 the company was constrained to move the High Court of Madras which is the court having original jurisdiction under the provisions of the Arbitration and Conciliation Act in terms of the agreement between the parties. The High Court of Madras in A.No.4251 of 2018 had appointed a legal executive office of the company himself as the receiver to take possession of the vehicle if necessary through police assistance. True copy of the order dated 09.08.2018 in A.No.4251 of 2018 of the High Court of Judicature at Madras is produced herewith and marked as Exhibit R-3(a).

7. I respectfully submit that the company has taken possession of the vehicle in the light of Exhibit R-3(a) order. Thereafter, the petitioner approached the company and an understanding was reached the petitioner's husband and the overdue amounts were paid and the vehicle was released to them. She had agreed that the Memorandum of Understanding will form part of the loan agreement and she will pay the future EMI without fail. True copy of the Memorandum of Understanding dated 14.11.2018 executed between the petitioner's husband and the 3 rd respondent is produced herewith and marked as Exhibit R-3(b).

8. I respectfully submit that the petitioner did not comply with the terms of the agreement. Even now there is arrears in the loan account. The petitioner had not remitted the instalments in the loan account as agreed. The same would W.P.(C) No.26266 OF 2020(G)

be revealed from the account statement maintained by the company. True copy of the account statement as on 16.01.2021 is produced herewith and marked as Exhibit R-3(c).

9. It is respectfully submitted that the petitioner had preferred the above writ petition suppressing these material facts. Exhibit P-3 produced by the petitioner itself would show that as during January-2021 the total outstanding EMI is Rs.98,275/-. Once the loan is recall, the respondent company can proceed in accordance with the terms of the agreement.

10. I respectfully submit that the company had not deputed any henchmen to recover the dues from the petitioner. The company will not resort to take law into the hands. The company will proceed only in accordance with the terms of the agreement. The petitioner without a cause of action had approached this Hon'ble Court and preferred the present writ petition. There is no necessity to seek a writ for police protection."

4. The learned Government Pleader, on instructions, would

submit that at present, there is no law and order issues.

5. Having considered the submissions made by the learned

counsel on both sides, this Court finds that the specific stand taken

by the 3rd respondent is that the said respondent has absolutely no

intention to take law into his own hands in order to take

possession of the vehicle.

W.P.(C) No.26266 OF 2020(G)

In such circumstances, this writ petition is disposed of

recording the aforesaid stand taken by the 3rd respondent and by

directing the 2nd respondent to take necessary steps to ensure that

there is no threat to law and order in the locality, at the instance of