BANSIDHAR MOHARANA Vs. AREA MANAGER SALES

JUDGEMENT

(1.) THE petitioner in this writ application prays for a direction to the opposite parties 3, 4 and 5 to take action against the persons who are named in the F.I.R. lodged by the driver of the petitioner's vehicle bearing registration No. OR -02 -AC -0639 and also for a direction to the opposite party No. 2 to release the said vehicle in favour of the petitioner by accepting two monthly instalments i.e. for the months of August and September, 2005.

(2.) THE case of the petitioner is that he had purchased a vehicle bearing the aforesaid registration number financed by the ICICI Bank. The petitioner was required to pay back the amount to the bank in sixty instalments and accordingly as per terms and conditions of the hypothecation agreement he had signed sixty post dated cheques and the same were to be encashed by the bank. According to the petitioner, the said cheques were being encashed by the bank towards realization of the instalments from time to time and suddenly from the month of January, 2005 an agent of the bank started collecting the instalments from the petitioner and the post dated cheques were never encashed. According to the petitioner, instalments up to the month of July, 2005 had been paid by him. However, for the months of August and September, 2005 the instalments could not be paid as a result of which on 30th September, 2005 while the vehicle, which was being used as a Taxi, was parked the same was forcibly taken from the possession of the driver by opposite party No. 6 along with seven other antisocials. The driver immediately lodged an F.I.R., but no action has been taken on the said F.I.R. till today. According to the petitioner, there being no default in payment of instalments, there was no violation of the terms and conditions of the hypothecation agreement and, therefore, the bank had no authority to take away the aforesaid vehicle from the possession of the petitioner.

(3.) THE learned Counsel for the petitioner submitted that as is evident from the receipts annexed to the writ application, instalments up to July, 2005 had been paid and default was only for the month of August, 2005. The September instalment was not due on the date of taking over possession and, therefore, the bank under the terms of hypothecation agreement could not have taken possession of the vehicle for default in payment of only one instalment. In this connection, the learned Counsel for the petitioner also referred to certain terms and conditions contained in the hypothecation agreement. However, there is no dispute that the bank had a right to take over possession of the vehicle in case of default in payment of instalment.