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2007 Supreme(Cal) 589
High Court Of Calcutta
Bhaskar Bhattacharya And Rudrendra Nath Banerjee, JJ.
BHANU PRATAP SINGH - Appellant
Versus
STATE OF W.B - Respondent
C. A. N 5222 Of 2007
Decided On : 08/02/2007
DEBASISH KAR, Mainak Bose, PARITOSH SINHA, PRADIP KUMAR ROY
A writ petition is not maintainable where the petitioner has committed undisputed default in payment of instalments and the lender has a specific stipulation to take possession of the vehicle in case of default, and the petitioner has an appropriate remedy under the Code of Criminal Procedure.
Headnote:
WRIT PETITION - MANDAMUS APPEAL - LIMITATION - CONDONATION OF DELAY - STAY - HIRE PURCHASE - RECOVERY OF VEHICLE - POLICE COMPLAINT - JURISDICTION OF HIGH COURT - APPROPRIATE REMEDY UNDER CODE OF CRIMINAL PROCEDURE - SECTION 5 OF THE LIMITATION ACT - ARTICLE 226 OF THE CONSTITUTION OF INDIA.
Fact of the Case:
The appellant, a writ petitioner, challenged two orders of a single judge dismissing his writ application and refusing to recall the earlier order. In the writ application, the appellant alleged that the respondent forcibly took possession of his truck for non-payment of instalments under a hire purchase agreement. The appellant sought directions to the police to recover the vehicle and proceed with the complaint lodged by him.
Finding of the Court:
The court held that the appellant's writ petition was not maintainable as he had admitted default in payment of instalments. The court further held that the appellant had an appropriate remedy under the Code of Criminal Procedure and could not directly approach the High Court for a writ of mandamus.
Issues: 1. Whether the appellant's writ petition was maintainable despite his admission of default in payment of instalments. 2. Whether the appellant could directly approach the High Court for a writ of mandamus without first resorting to the appropriate remedy under the Code of Criminal Procedure.
Ratio Decidendi: 1. The court relied on several Supreme Court precedents holding that a writ petition is not maintainable where the petitioner has committed undisputed default in payment of instalments and the lender has a specific stipulation to take possession of the vehicle in case of default. 2. The court also relied on the Supreme Court decision in Hari Singh v. State of U.P., which held that a writ application is not maintainable at the first instance without taking recourse to the provisions of the Code of Criminal Procedure.
Final Decision: The court dismissed the mandamus appeal and held that the appellant's writ petition was not maintainable. The court also clarified that the dismissal of the appeal would not prevent the appellant from approaching an appropriate forum in accordance with law.
( 2 ) THE application for condonation of delay under section 5 of the Limitation act being CAN No. 5221 of 2007 is disposed of accordingly. Re: An application for stay being CAN No. 5222/2007.
( 3 ) INSTEAD of taking up the application for stay, we propose to hear out the appeal itself by treating it as on day's list.
( 4 ) BY this mandamus appeal an unsuccessful writ petitioner has challenged two orders, one dated 8th August, 2006 passed by a learned Single Judge thereby dismissing a writ application and the other dated 20th April, 2007 passed by his Lordship thereby refusing to recall the earlier order dated 8th August, 2006.
( 5 ) IN the writ application, the grievance of the writ petitioner was that he took loan from respondent No. 4 for the purpose of purchasing a truck and, accordingly, a hire purchase agreement was entered into between the writ petitioner and the respondent No. 4. Pursuant to such agreement, a truck has been purchased and the writ petitioner was in possession of such truck.
( 6 ) IN the writ application, it was alleged that there was non-payment of three instalments in accordance with the terms of the hire purchase agreement. It was stated in the writ application that on 8th June, 2006 he sent one of his employee to the respondent No. 4 for the purpose of giving the monthly instalment, but the said employee on the way to the office of respondent No. 4 informed him that the truck had been forcibly taken at the point of revolver, knife, etc. and after driving away the drive and the khalashi, the said truck was kept in a parking place named 'dey Motor' on Bombay Road. It was further alleged that the writ petitioner contacted with the respondent No. 4 over telephone for return of the vehicle, but the respondent No. 4 threatened him with the dire consequences of killing, in the event, he tried to release the vehicle. In view of such fact, he made a written complaint to the local police station for taking action and a copy of such letter was also given to the Superintendent of police; but in spite of such complaint, no action was taken.
( 7 ) IN the writ application, the first prayer was that the police authority should be directed to proceed with the complaint lodged by the petitioner in accordance with law and the other relief claimed was that the police authority should be directed to recover the vehicle and to hand over the same to the writ petitioner.
( 8 ) IT appears from record that the learned Single Judge by the first order, namely, the order dated August 8, 2006 by relying upon unreported decisions of a Division Bench of this Court of MAT No. 2302 of 2005 and APOT No. 674 of 2005, held that the case in hand was covered by the decisions given therein and, accordingly, the writ application was dismissed.
( 9 ) SUBSEQUENTLY, the writ petitioner filed an application for review of the said order on the ground that those decisions were not applicable to the fact of the present case.
( 10 ) BY the second order, namely, the order dated 20th April, 2007, the learned single Judge dismissed such application.
( 11 ) BEING dissatisfied with the aforesaid two orders passed by the learned single Judge, the writ petitioner has come up with the present mandamus appeal.
( 12 ) MR. Roy the learned Advocate appearing on behalf of the appellant, by relying upon a decision of the Supreme Court in the case of Manager, ICICI bank Ltd. vs. Prakash Kaur and Ors. , reported in 2007 (1) Crimes 407 (SC), contended that in view of the aforesaid decision of the Supreme Court, it was the duty of the learned Single Judge to allow the application and it is a fit case where this Court should pass direction upon the police authority to return t
