RAKESH KUMAR CHHUALSINGH Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) IN the instant application under Section 482 Cr.P.C. the legality and propriety of the proceedings in C. R. No. 821 of 2009 corresponding to T. R. No. 257 of 2009 under Section 379/120(B), 500 and 506 IPC including order dated 28.08.2009 passed therein by the learned Judicial magistrate, 4th Court, District: Paschim Midinipore have been challenged.

(2.) THE present petitioner being Manager of Tata Motors Finance Limited has contended that the said company carries on business of letting out motor vehicle on hire and on loan basis. On being approached by the opposite party no. 2 they extended financial assistance of Rs. 11,20,000/- to him for the purpose of purchasing a Tata ten vehicle truck of model LPT 2518 TC on the basis of a loan cum hypothecation cum guarantee agreement dated 301.1.2007 with the said company. THE said amount with interest was repayable at the rate of Rs. 27,950/- in 57 instalments and the balance amount of Rs. 16,850/- in the 58th instalment commencing from 2nd January, 2008 to 2nd September, 2012. THE opposite party no. 2 failed and neglected to pay the 15th instalment onwards and ultimately a sum of Rs. 1,62,738/- was due as on 22.08.2009. THErefore, as per agreement the company had no other option but to repossess the said vehicle under intimation to all concerned on 22.08.2009.

(3.) LEARNED lawyer for the opposite party no. 2 has opposed the move and contended that though as per hypothecation agreement the financier is entitled to repossess the vehicle which is mortgaged as a security, such process must be legal in nature and without recourse to the due process of law the financier cannot lift a plying vehicle on account of non-payment of some monthly instalments without proper notice as is done in the instant case. He has drawn my attention to the principles laid down in the case of ICICI Bank Limited ?Vs.- Prakash Kaur and Ors., reported in (2007) 2 C.Cr.L.R. (SC) 315 in support of his contention. In the said case the Hon?ble Apex Court has deprecated the taking of possession of a truck by engaging hooligans and granted opportunity to the petitioner respondent to pay the dues in instalments. Their Lordships were further pleased to hold that the banks are entitled to recovery of loans or seize vehicle only by legal means.