IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.45793 OF 2019(GM-RES) BETWEEN:
Sri.Prabhudas.T, Son of Thomas, Aged about 41 years, Residing at No.1219, Kote Beedi, Begur, Bengaluru North, Bengaluru – 560 068.
(By Sri.Fayaz Sab B.G, Advocate) AND:
1. The State of Karnataka, Represented by its Chief Secretary, Multi-storied Building, Dr.Ambedkar Vedhi, Bengaluru – 560 001.
2. The Additional Secretary, RTA, Office of the Regional Transport (RTO), Electronic City, Bengaluru – 560 076.
... Petitioner 3. Equitas Small Finance Bank Limited, (Previously known as Equitas Finance Limited) Represented by its Authorized Signatory, 4th Floor, Phase II, Spencer Plaza, No.769, Mount Road, Anna Salai, Chennai – 600 002.
State of Tamil Nadu.
… Respondents (By Sri.Vijay Kumar A. Patil, AGA for R1 and R2) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India, praying to direct the respondent No.3 not to conduct auction sale of goods lorry bearing Reg.AP.26.TE.4568 engine No.BAFZJ13296, Chasis No.MA1PEAHBCF6J47514, pursuant to Demand Notice dated 09.08.2019, which is produced and marked as Annexure-G and etc.
This Writ Petition coming on for Preliminary Hearing this day, the Court made the following:
ORDER The petitioner has filed the present writ petition seeking a very strange prayer directing the respondent No.3-Bank not to conduct auction sale of goods lorry bearing Reg.No.AP-26-TE-4568 pursuant to the Demand Notice dated 09.08.2019, which is produced and marked as Annexure-G and to direct respondent No.2 not to transfer any records pertaining to the goods lorry Bearing Reg.No.AP-26-TE-4568, Engine No.BAFZJ13296, Chasis No.MA1PEAHBCF6J47514 in favour of any person claiming to be the purchaser of the aforesaid vehicle.
2. It is the case of the petitioner that he is the registered owner of Goods Lorry bearing Reg.No.AP-26- TE-45678, Engine No.BAFZJ13296, Chasis No.MA1PEAHBCF6J47514. In order to meet financial requirement for payment of charges of purchase of aforesaid vehicle, he approached the respondent No.3 – Bank for sanction of loan. Respondent No.3 - Bank considering the request of the petitioner sanctioned loan of Rs.12 lakhs to purchase the said vehicle. Accordingly, the petitioner executed the loan agreement dated 30.04.2018 and agreed to repay the same in monthly equated installments. As per the terms and conditions set out in the loan agreement, from the date of sanction of loan, the petitioner was regular in repayment of loan EMIs. The aforesaid vehicle is in a good condition having a valid Insurance Policy.
3. It is further the case of the petitioner that the petitioner and his family members are entirely depending upon the earning from the said vehicle. When things stood thus, he could not repay the loan installments in terms of the conditions of agreement entered into between the petitioner and respondent No.3 – Bank due to financial problems. Therefore, requested respondent No.3 – Bank to grant sometime to regularize the loan dues. Instead of considering the request of the petitioner, respondent No.3 – Bank on 09.08.2019 issued a Demand Notice for settlement, failing which termination of the loan agreement dated 30.04.2018 will be taken. Therefore, the petitioner is before this Court for the relief sought for.
4. I have heard the learned counsel for the parties to the lis.
5. Sri.Fayaz Sab.B.G, learned counsel for the petitioner contended that respondent No.3 – Bank has initiated coercive steps and seized the goods lorry belonging to the petitioner and is now contemplating to auction the said vehicle to their own personnel for throwaway prices. If the auction is held and if any person purchases the vehicle in the auction, the records of the vehicle will be transferred in the name of the said person thereby depriving the livelihood of the petitioner. He further contended that the demand made by respondent No.3 – Bank is in utter violation of Articles 14, 16 and 21 of the Constitution of India. Respondent No.3 – Bank ought to have given time to pay the installments or regularized the loan account for payment. Therefore, he would contend that a direction has to be issued respondent No.3 - Bank not to conduct auction of Goods Lorry bearing Reg.No.AP-26-TE-4568 Engine No.BAFZJ13296, Chasis No.MA1PEAHBCF6J47514 and further direct respondent No.2 – Authority not to transfer any records pertaining to the said vehicle in favour of any person claiming to purchase it. Therefore, sought to allow the writ petition.
6. Per contra Sri. Vijaykumar A. Patil, learned AGA for respondent Nos.1 and 2 on taking notice submitted that the very prayer made in the present writ petition sought is in the form of anticipatory bail. Without paying the amount demanded by respondent No.3 – Bank, the very prayer seeking writ of mandamus against respondent No.3 - Bank is not maintainable. He further contended that even according to the petitioner, the auction is not yet conducted. Even before any auction to be held, he has sought for a direction to respondent No.3 - Bank not to transfer any records pertaining to Goods Lorry in favour of the auction purchaser. As such, the prayer cannot be maintained. Therefore, he the sought to dismiss the writ petition.
7. Having heard the learned counsel for the parties, undisputed fact is that the petitioner purchased the Goods Lorry bearing Reg.No.AP-26-TE-4568 Engine No.BAFZJ13296, Chasis No.MA1PEAHBCF6J47514 on obtaining loan of Rs.12 lakhs from respondent No.3 – Bank. According to the petitioner, he was paying EMIs regularly, but respondent No.3 – Bank issued demand notice dated 09.08.2019 and specifically stated that the petitioner has committed default in payment of monthly installments in terms of the loan agreement and the Bank is not inclined to repose faith and confidence and hypothecated asset has been repossessed by them and called upon the petitioner to pay a sum of Rs.8,04,959/- as on 09.08.2019 towards full discharge of loan agreement within a period of seven days. Failing to comply with the demand, they will appoint a sole arbitrator to adjudicate the dispute, difference and/or claim against all. Accordingly, the letter was marked to Sri.C.Samson, the arbitrator to enter reference at the earliest convenience being informed.
8. Admittedly, in the Demand Notice, they have not said anything about the sale auction. It is only referred to the arbitrator to resolve the dispute. It is for the petitioner to approach the learned Arbitrator and if he is ready to pay the installment as stated by learned counsel for the petitioner, it is always open for him to approach respondent No.3 - Bank or the arbitrator for adjudication and pay the due amount. Without approaching respondent No.3 or the arbitrator appointed by respondent No.3, the prayer sought for is nothing but seeking injunction restraining respondent No.3 – Bank not to discharge their duty to recover the loan due from the petitioner. The second prayer sought for is in the form of injunction against the respondent No.2 - Government authority not to transfer the records after auction. Since the prayer sought for is in the form of anticipatory bail, the petitioner cannot be encouraged to approach this Court. As rightly pointed out by the learned Government Advocate, the writ petition is not maintainable as it is premature and liable to be rejected.
9. For the reasons stated above, writ petition is dismissed as devoid of any merit.
10. However, it is open for the petitioner to approach respondent No.3 - Bank or the learned arbitrator appointed by respondent No.3 to adjudicate his claim in accordance with law.
Sd/- JUDGE dn/-