AMIR SK. Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The petitioner purchased a vehicle, bearing no. WB 57D 6334 under a loan cum hypothecation cum guarantee agreement obtaining loan for purchase of the said vehicle. Further case of the petitioner is that the opposite party no. 2/ lender tried to take forcible possession of the vehicle of the petitioner on 14/1/2022. However, the driver of the said vehicle somehow managed to escape from the place with the vehicle and reported the incident to the petitioner. The petitioner then filed a suit for declaration and injunction in the City Civil Court at Calcutta, XII Bench which was registered as Title Suit no. 118 of 2022. In the said suit, the petitioner obtained an order of interim injunction against the opposite party no. 2 restraining it to cause any disturbance in peaceful possession of the vehicle in question by the petitioner. The opposite party no. 2 was also restrained from seizing the said vehicle otherwise than due process of law. However, during subsistence of the order of interim injunction, some miscreants appointed by the opposite party no. 2 forcibly took possession of the said vehicle on 3/2/2022. The driver of the vehicle was also harassed by them. On the same date the driver lodged a written complaint with the Officer-in-Charge of Kotwali Police Station, Nadia on the basis of which FIR case no. 114 of 2022 under Sec. 341/188/384/34 of the Indian Penal Code was registered. On 14/2/2022, the petitioner filed an application before the Learned Chief Judicial Magistrate, Nadia and prayed for return of the said vehicle. The said application was rejected by the Learned Chief Judicial Magistrate, Nadia vide Order dtd. 1/4/2022. The said order is under challenge in the instant revision.

(2.) It is contended by the Learned Advocate for the petitioner that the petitioner purchased the above mentioned vehicle obtaining loan from Tata Motors Finance Limited, the opposite party no. 2 herein. After obtaining loan the petitioner was all along very regular in payment of Equal Monthly Installments (EMI) however during covid pandemic there was absolute disruption of petitioner's business of transportation. Petitioner could not earn any money to make payment of loan in favour of the opposite party no. 2. when the opposite party no. 2 and its men and agents tried to take illegal possession of the said vehicle on 14/1/2022, the petitioner approached the Civil Court and obtained an order of interim injunction, the said order of interim injunction restraining the opposite party no. 2 from disturbing possession of the petitioner in respect of the said vehicle and from seizing the vehicle was in force on the date of seizure i.e. on 3/2/2022. It is urged by the Learned Advocate for the petitioner that opposite party no. 2 cannot seize the vehicle in violation of the order of injunction passed by the Civil Court.

(3.) The opposite party no. 2 has filed an affidavit-in-opposition controverting the allegations made by the petitioner. It is the specific case of the opposite party no. 2 that the petitioner purchased the vehicle in question obtaining loan from opposite party no. 2 by executing an agreement, the agreement clearly stipulates that in case of failure on the part of the petitioner to make payment of EMI regularly, the lender shall have the right to take possession of the vehicle. It is also urged on behalf of the opposite party no. 2 that the agreement executed by and between the petitioner and the opposite party no. 2 contains an arbitration clause giving liberty to the parties to resolve all sorts of disputes and differences arising out of the agreement to be referred to arbitration.