C.W.P. No.29390 of 2008

23rd April, 2010

Petitioner Counsel: K. P. AGRAWAL, GHAZALA BANO QUADRI
Respondent Counsel: MANISH TRIVEDI

Cases Cited:
ICICI Bank Ltd. Vs. Prakash Kaur, 2007 ALL SCR 792 : (2007)2 SCC 711 [Para PARA4]

JUDGMENT

-By means of the present writ petition, the petitioner seeks a writ, order or direction in the nature of mandamus directing the respondent No.4 ie. ICICI Bank Ltd. Sardar Patel Marg, Civil Lines, Allahabad to release the Mini Bus Tata 407 having registration No.UP. 70 AT 6632 to the petitioner. A further direction is sought in the nature of mandamus to direct the respondents No.5 and 6 to register the case against the respondents on the basis of an application filed as Annexure 4 to the writ petition.

2. Briefly stated the facts giving rise to the present petition are as follows.

3. The petitioner had purchased a Mini Bus Tata 407, which was financed by the ICICI Bank Ltd. Civil Lines, Allahabad. Its registration No. is U.P. 70 AT 6632 and Chasis No.357166 ATZ 452481 and Engine No.4075. It was financed by the ICICI Bank Ltd. under the terms of an agreement dated 29.3.2007, a copy of which has been placed on record by the bank along with the counter affidavit as Annexure CA 1. It appears that the petitioner defaulted in payment of instalments as a result of which it is the case of the petitioner that the bank forcibly seized the vehicle on 6.5.2008 without adopting due process of law. We may mention here that a total sum of Rs.4,82,762/- was advanced by the bank for the purchase of vehicle in question and a monthly instalment of Rs.14,575/- was fixed towards the loan instalment. The vehicle was seized on 6.5.2008, whereafter, the petitioner informed the Senior Superintendent of Police, Allahabad, by means of an application dated 19.5.2008. No action was taken whereupon, the petitioner has approached this court seeking aforementioned reliefs. Counter and rejoinder affidavits have been exchanged. With the consent of the learned counsel for the parties, this writ petition is disposed of finally at the admission stage itself in accordance with the Rules of the Court.

4. Learned counsel for the petitioner submitted that the vehicle was seized by the recovery agents employed by the bank on 6.5.2008 without taking recourse to the provisions of law. She relied upon a decision of the Apex Court in the case of ICICI Bank Ltd. Vs. Prakash Kaur and others, (2007)2 SCC 711 : [2007 ALL SCR 792], wherein, the Court has held that the bank should resort to procedure recognised by law to take possession of vehicles in cases where borrower has committed default instead of resorting to strong arm tactics.

5. Sri Maneesh Trivedi, learned counsel appearing for the bank submitted that as the petitioner had defaulted in payment of monthly instalments, he voluntarily surrendered the vehicle on 6.5.2008, as per the surrender letter of even date filed as Annexure 1 to the counter affidavit. Necessary averments in this behalf has also been made in paragraph 7 of the counter affidavit filed by Ajay Gupta, Collection Manager, ICICI Bank Ltd. 13, Sardar Patel Marg, Civil Lines, Allahabad. He, therefore, submitted that the petition filed for release of the vehicle is wholly misconceived.

6. We have given our thoughtful consideration to the various pleas raised by the learned counsel for the parties. From the loan agreement, we find that the petitioner had signed the same in 'Hindi' whereas, in the surrender document filed along with the counter affidavit as Annexure 1, the alleged signature is in 'English'. Further, form a perusal of the Annexure CA 1, we find that the name of the petitioner and the address has been mentioned in English under the place mentioned as borrower's name and address. However, the column containing the borrower's signature is left blank.

7. Shri. Maneesh Trivedi submitted that the name of Rafiq Ahmad written in english is his signature. This can not be accepted for the simple reason that Rafiq Ahmad had signed the loan agreement in Hindi and, further the name and address only contains the name of the petitioner in English. The signature column is blank which goes to establish the case set-up by the petitioner that the recovery agents employed by the bank forcibly seized the vehicle from the petitioner for non-payment of the instalments.

8. In this view of the matter, we are of the considered opinion that the action adopted by the bank can not be justified in law and need to be deprecated. The bank is, therefore, directed to forthwith return the vehicle U.P. 70 AT 6632 to the petitioner in a perfect running condition. As the petitioner has been deprived illegally and without the authority of law from running the vehicle in question from 6.5.2008, the petitioner is entitled to be compensated. Instead of quantifying the amount of compensation, we deem fit and proper and also in the interest of justice that the bank should not demand any interest on the amount advanced for the aforesaid period beginning from 6.5.2008 till the date when the vehicle is returned. The repayment schedule should also be extended by excluding the period when the vehicle was forcibly seized and was in possession of the bank. We, therefore, direct that for the period from 6.5.2008 when the vehicle was seized illegally till its actual return, the bank shall not realise any interest on the amount of the loan advanced to the petitioner and, further for the aforesaid period, there shall be a moratorium of repayment of the instalment and it shall begin only after one month from the date of the return of the vehicle. As the interest of the petitioner has been taken care of by the aforesaid directions, we are not awarding any cost to the petitioner.

9. The writ petition stands allowed.

Petition allowed.