Vikash Kol vs Union Of India
2023 Latest Caselaw 729 MP

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                           IN    THE     HIGH COURT OF MADHYA PRADESH
                                              AT JABALPUR
                                                    BEFORE
                                      HON'BLE SHRI JUSTICE VISHAL DHAGAT
                                           ON THE 12 th OF JANUARY, 2023
                                          WRIT PETITION No. 22528 of 2021

                          BETWEEN:-
                          VIKASH KOL S/O LATE CHHOTELAL KOL, AGED ABOUT
                          30 YEARS, OCCUPATION: PRIVATE JOB, R/O 1504
                          INDIRA AWAS COLONY, MANEGAON, RANJHI,
                          DISTRICT JABALPUR (MADHYA PRADESH)

                                                                               .....PETITIONER
                          (BY SHRI OM SHANKAR PANDEY - ADVOCATE)

                          AND
                          1.    UNION OF INDIA THROUGH MINISTRY OF
                                FINANCE, GOVT. OF INDIA, NEW DELHI (DELHI)

                          2.    STATE OF MADHYA PRADESH THROUGH THE
                                S E C R E T A R Y, MINISTRY OF FINANCE
                                DEPARTMENT, VALLABH BHAWAN, BHOPAL
                                (MADHYA PRADESH)

                          3.    GOVERNOR, RESERVE BANK OF INDIA, 18TH
                                FLOOR, CENTRAL OFFICE BUILDING, SHAHID
                                BHAGAT     SINGH     ROAD,     MUMBAI
                                (MAHARASHTRA)

                          4.    POLICE STATION KUTHLA, DISTRICT KATNI
                                (MADHYA PRADESH)

                          5.    DIRECTOR, AU SMALL FINANCE BANK LIMITED,
                                AU NEEV, 19-A DHULESHWAR GARDEN, AJMER
                                ROAD, JAIPUR, RAJASTHAN (RAJASTHAN)

                          6.    BRANCH MANAGER, AU SMALL FINANCE BANK
                                LIMITED, BRANCH AT MAHANADDA, JABALPUR
                                (MADHYA PRADESH)

                                                                             .....RESPONDENTS
                          (BY SHRI MUKESH KUMAR SHRIVASTAVA - ADVOCATE      AND SHRI
                          SANJEEV TIWARI - ADVOCATE FOR RESPONDENT NO.5 AND 6.)
Signature Not Verified
Signed by: SUNIL KUMAR
PATEL
Signing time: 1/18/2023
6:29:08 PM
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                                This petition coming on for admission this day, th e court passed the
                          following:
                                                               ORDER

Petitioner has filed this petition under Article 226 of the Constitution of India making a prayer to issue writ of mandamus directing respondents not to charge interest/penal interest on outstanding portion of Auto Loan in pursuance of notification dated 27.03.2020 issued by RBI and in light of judgment dated 21.03.2021 passed by Apex Court and to return penal interest of Rs.1,22,172/-

which has been charged from petitioner for moratorium period of 18th

February, 2020 to 18 th August, 2021. Further prayer is made to release the

vehicle of petitioner which has been seized by respondents.

2. Counsel appearing for petitioner submitted that father of petitioner namely Late Chhote Lal Kol (died on 06.11.2019) availed Auto Loan and purchased Swift Dzire, VDI Diesel Car bearing Registration No.MP-20-CH- 9545. Loan was financed by AU Small Finance Bank Limited, Jabalpur at interest rate of 12.51% per annum. Loan amount is to be paid back in 54 monthly installments. Each monthly installment is of Rs.14,037/-. Last installment is to be paid on 18.08.2023. It is submitted that after death of loanee, petitioner was paying installment regularly till 18.08.2021. It is submitted that on 24.09.2021 at Toll Plaza Katni, vehicle was forcibly repossessed by respondent No.5 and 6 and petitioner was warned to make payment of due installments by

20th October, 2021. It is submitted that respondents had charged interest on Auto Loan contrary to the Circular/Notification issued by RBI dated 27.03.2020. Petitioner was not given the benefit of moratorium by finance company. It is submitted that judgment of Apex Court dated 21.03.2021 has also been violated. It is also submitted that rights of natural justice of petitioner Signature Not Verified Signed by: SUNIL KUMAR PATEL Signing time: 1/18/2023 6:29:08 PM

was also violated and petitioner was not heard in the matter and no notice was issued to him before repossession. In view of aforesaid facts, counsel appearing for petitioner made prayer as mentioned above.

3. Counsel appearing for respondents raised preliminary objection regarding maintainability of writ petition as petitioner is having alternate remedy of recourse to arbitration. Respondents had already invoked arbitration clause and the matter is referred to Arbitration Tribunal presided by Shri Liladhar Swami at Jaipur. Petitioner has to file counter claim or application for interim relief in said arbitration proceeding at Jaipur and writ petition is not maintainable as bank is not a State within meaning of Article 12 of the Constitution of India. Bank is a registered company, doing baking business and State or Central Government has no share or stake in banking company. Reliance is placed on judgment of Gopal Prasad Varshney Vs. Bank of Rajasthan Ltd. , reported in MANU/RH/0164/2009. Apex Court has also held that Bank of Rajasthan is not State within meaning of Article 12 of the Constitution of India. It is further submitted that vehicle has already been sold to one Pradeep Kumar Jain, who has not arrayed as party in the case. There is private commercial dispute between the parties which cannot be adjudicated in writ petition. It is submitted that interest was waived off and amount was credited in account of petitioner as per judgment of Apex Court in case of Small Scale Industrial Manufactures

Association Vs. Union of India and Others, reported in (2021) 8 SCC 511. Petitioner is not appearing before Arbitrator and proceeding is pending before him. It is submitted that repossession of vehicle was useful and in accordance with law and petitioner was also issued a notice and Police Station Kuthla, District Katni was also informed. It is submitted that moratorium was only for

Signature Not Verified Signed by: SUNIL KUMAR PATEL Signing time: 1/18/2023 6:29:08 PM

period between 01.03.2020 to 31.08.2020 as per circular of RBI. Petitioner is seeking waiver of interest on outstanding portion till date which is not permissible, nor circular of RBI provides so. Interest amount for stipulated period in circular has already been credited in account of petitioner. Petitioner is willful defaulter and notice to petitioner as well as to concerned police station was given before repossession of vehicle.

4. Heard the counsel for the parties.

5.Contract had been entered between private parties in this case and no public law element is involved in the case. It is also not a case where any criminal activity or any highhanded act has been committed by respondent bank violating fundamental rights of the petitioner. Petitioner has not prayed for any relief for registration of FIR against private company or against the agents employed by private company for repossession of vehicle. Relief claimed by petitioner is economic in nature. Writ petition for breach of private contract is not maintainable before this Court.

6. It is also disputed question of fact that whether any penal interest has been charged by respondents or not. Respondents in their return has stated that interest charge during moratorium period has been credited into the account of petitioner. Sole arbitrator in the case has also been appointed and proceedings are initiated. Notices of repossession of vehicle has been given to petitioner and local police station has also been informed. Seat of Arbitration as agreed between the parties by loan agreement shall be at Jaipur.

7. In view of aforesaid facts and circumstances of the case, it is clear that petitioner has filed writ petition under Article 226 of the Constitution of India for settlement of private law dispute between him and a private bank, therefore, writ petition filed by petitioner is not maintainable and same is dismissed. Signature Not Verified Signed by: SUNIL KUMAR PATEL Signing time: 1/18/2023 6:29:08 PM

(VISHAL DHAGAT) JUDGE sp/-

Signature Not Verified Signed by: SUNIL KUMAR PATEL Signing time: 1/18/2023 6:29:08 PM