Abdul Razak N.K. v. Corporation Bank Aluva Branch and Sub Regional Transport Officer, Aluva

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 13TH DAY OF JUNE 2019 / 23RD JYAISHTA, 1941** **WP(C).No.16103 of 2019** ## **PETITIONER/S:** **ABDUL RAZAK.N.K, AGED 40 YEARS S/O. KADERKUNJU, PROPRIETOR, FIFA PLASTICS, KEEZHMADU, ERUMATHALA, ALUVA, ERNAKULAM-683 101** **BY ADV. SRI.M.C.JOHN** ## **RESPONDENT/S:** **1 CORPORATION BANK ALUVA BRANCH, REPRESENTED BY MANAGER, CORPORATION BANK, ALUVA PIN-683 101 2 THE SUB REGIONAL TRANSPORT OFFICER, MINI CIVIL STATION, ALUVA, PIN-683 101** ## **OTHER PRESENT:** **SRI MANU RAJ K.J- GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- W.P.(C). No. 16103 of 2019 ## **JUDGMENT** The petitioner, who is stated to be the proprietor of an industrial unit called “Fifa Plastics”, engaged in the manufacture of molded plastic items, who is also the registered owner of a goods carriage bearing Registration No. KL-41G 1107 covered by Ext.P1 certificate of registration and Ext.P2 goods carriage permit, which was valid up to 18.01.2018, has filed this writ petition seeking the following reliefs: “(i) issue a direction to the first respondent to give No Objection Certificate (NOC) as applied for in Exhibit P3 so as to enable renewal of Exhibit P2. (ii) issue a writ of mandamus directing the second respondent to renew Exhibit P2 permit. (iii) allow the petitioner to discharge the hypothecation arrears in 15 monthly installments.” 2. Heard the learned counsel for the petitioner, the learned Standing Counsel for the 1[st] respondent, who is the financier of the vehicle covered by Ext.P1 certificate of -3- W.P.(C). No. 16103 of 2019 registration and Ext.P2 goods carriage permit, and also the learned Government Pleader for the second respondent Sub Regional Transport Officer. 3. The pleadings and materials on record would show that the petitioner purchased the vehicle covered by Exts.P1 and P2 after availing a hypothecation facility from the first respondent Bank. The validity of Ext.P2 goods carriage permit expired on 18.01.2018. The petitioner moved Ext.P3 request before the Manager of the first respondent Bank for the grant of No Objection Certificate, so as to enable him to move an application for renewal of Ext.P2 goods carriage permit, in view of the statutory provisions under Section 51 of the Motor Vehicles Act, 1988. Now the petitioner is before this Court, seeking various reliefs, contending that the first respondent Bank refused to issue a No Objection Certificate, and for that reason, the second respondent is yet to grant renewal of Ext.P2 goods carriage permit. 4. The learned Standing Counsel for the first respondent Bank would point out that the petitioner has -4- W.P.(C). No. 16103 of 2019 defaulted repayment of the loan amount. The loan account is declared as Non Performing Asset (NPA) with effect from 30.07.2017. On an earlier occasion, the Bank has initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, (SARFAESI Act) against the petitioner on account of his default in repayment. Later, the petitioner paid the dues and got the account regularised. Thereafter, the petitioner again committed default and the first respondent Bank propose to initiate fresh proceedings against the petitioner under the SARFAESI Act. 5. Having considered the submissions made by the leaned counsel on both sides, this Court finds that the _inter se_ dispute between the petitioner and the first respondent, who is a financier, cannot be decided in the writ jurisdiction of this Court under Article 226 of the Constitution of India. 6. In **Shabu Sukumaran v. Regional Transport Officer, TVM and others [2018 (2) KHC 470]** , after referring to the provisions under Section 51 of the Motor -5- W.P.(C). No. 16103 of 2019 Vehicles Act, 1988, this Court has held that, as per subsection (8) of Section 51, while applying for renewal of permit or for issuance of duplicate certificate of registration or for assignment of a new registration mark, the registered owner shall submit the certificate, if any, obtained from the financier under sub-section (7) or, where no such certificate has been obtained, the communication received from the financier under that sub-section, or, as the case may be, a declaration that he has not received any communication from the financier within the period of seven days specified in that subsection. In the said decision, this Court held further that, even in the case, in which financier has objected renewal of permit, registering authority has discretion to renew the permit, after affording the applicant an opportunity of being heard. In the said decision, this Court has also held that registering authority has to apply its mind to the objections, if any, raised by the financier and take an appropriate decision as to whether despite such objections of the financier, applicant is entitled for renewal of permit. Paragraphs 4 to 6 of the said -6- W.P.(C). No. 16103 of 2019 ## decision reads thus: “4. Section 51 of the Motor Vehicles Act (hereinafter referred to as 'the Act' for short) deals with special provisions regarding motor vehicle subject to hire purchase agreement. Sub-section (6) of Section 51 provides that the registered owner shall, before applying to the appropriate authority, for the renewal of a permit under section 81 or for the issue of duplicate certificate of registration under sub-section (14) of Section 41, or for the assignment of a new registration mark under Section 47, or removal of the vehicle to another State, or at the time of conversion of the vehicle from one class to another, or for issue of no objection certificate under Section 48 or for change of residence or place of business under Section 49, or for the alteration of the vehicle under Section 52, make an application to the person with whom the registered owner has entered into the said agreement of hire purchase (such person being referred to as the financier) for the issue of a no objection certificate. Sub-section (7) of Section 51 provides that within seven days of the receipt of an application under sub-section (6), the financier may issue, or refuse, for reason which shall be recorded in writing and communicated to the applicant, to issue, the certificate applied for, and where the financier -7- W.P.(C). No. 16103 of 2019 failed to issue the certificate and also fails to communicate the reasons for refusal to issue the certificate to the applicant within the said period of seven days, the certificate applied for shall be deemed to have been issued by the financier. 5. Sub-section (8) of Section 51 provides that the registered owner shall, while applying to the appropriate authority for the renewal of any permit under Section 81, or for the issue of a duplicate certificate of registration, under sub-section (14) of Section 41, or while applying for assignment of a new registration mark under Section 47, submit with such application the certificate, if any, obtained under subsection (7) or, where no such certificate has been obtained, the communication received from the financier under that sub-section, or, as the case may be, a declaration that he has not received any communication from the financier within the period of seven days specified in that sub-section. As per Clause (a) of sub-section (9) of Section 51, on receipt of an application for the renewal of any permit or for the issue of duplicate certificate of registration or for assignment of a new registration mark in respect of a vehicle which is held under the said agreement, the appropriate authority may, subject to the other provisions of this Act, in a case where the financier has refused to issue the certificate applied for, after -8- W.P.(C). No. 16103 of 2019 giving the applicant an opportunity of being heard, either renew or refuse to renew the permit or issue or refuse to issue the duplicate certificate of registration or assign or refuse to assign a new registration mark. 6. The provisions under sub-section (9) of Section 51 of the Act would make it explicitly clear that even in a case in which the financier has objected the renewal of permit, the registering authority has the discretion to renew the permit, after affording the applicant an opportunity of being heard. Therefore, merely for the reason that the financier has refused to issue the certificate applied for under sub-section (7) of Section 51, the registering authority cannot reject an application made for renewal of contract carriage permit, in a mechanical exercise of power. Since certain discretion has been vested with the registering authority, in view of the provisions under sub-section (9) of Section 51 of the Act, the registering authority has to apply its mind to the objections, if any, raised by the financier and take an appropriate decision as to whether despite such objections of the financier, the applicant is entitled for renewal of permit.” 7. In view of the law laid down by this Court in the decision referred to Supra, the petitioner, who has purchased -9- ## W.P.(C). No. 16103 of 2019 the vehicle covered by Exts.P1 and P2, after availing hypothecation from the first respondent Bank, has to comply with the statutory mandate of Section 51 in order to seek renewal of Ext.P2 goods carriage permit. In case, there is any refusal on the part of the first respondent financier in issuing a No Objection Certificate, despite the petitioner making a request before the said respondent, the petitioner has to comply with the statutory mandate of sub-section (8) of Section 51 of the Act and thereafter move an application for renewal of Ext.P2 goods carriage permit before the second respondent. 8. The learned counsel for the petitioner would submit that the petitioner shall make a fresh application for renewal of Ext.P2 goods carriage permit before the second respondent, within one month from today, after complying with the statutory mandate of Section 51 of the Motor Vehicles Act. 9. In such circumstances, this writ petition is disposed of with the following direction: If the petitioner makes a fresh application for -10- W.P.(C). No. 16103 of 2019 renewal of Ext.P2 goods carriage permit, after complying with the statutory mandate of Section 51 of the Motor Vehicles Act within one month from the date of receipt of a certified copy of this judgment, the second respondent shall consider the same and pass appropriate orders thereon with notice to the petitioner and also the first respondent, as expeditiously as possible, at any rate, within a further period of one month, as per the law laid down by this Court in **Shabu Sukumaran's case (supra)** . **Sd/-** ## **ANIL K.NARENDRAN** **JUDGE** das -11- W.P.(C). No. 16103 of 2019 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE RELEVANT PAGES OF THE CERTIFICATE OF REGISTRATION DATED 14.01.2013.** **EXHIBIT P2 TRUE COPY OF THE GOODS CARRIAGE PERMIT DATED 21.02.2015. EXHIBIT P3 TRUE COPY OF APPLICATION DATED 31.05.2019 FOR NOC SUBMITTED BY PETITIONER.**