Poonath Nellisssery AUP School v. HDB Financial Services Ltd and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY ,THE 08TH DAY OF FEBRUARY 2019 / 19TH MAGHA, 1940** **WP(C).No. 9586 of 2018** **PETITIONER:** **POONATH NELLISSERY AUP SCHOOL POONATH P.O., NADUVANNUR, KOZHIKODE DISTRICT, REPRESENTED BY THE MANAGER, AGED 64 YEARS, W/O.MAMMUKUTTY, ROSE GARDENS, 323(2/156) RAMANATTUKARA, NEAR MAZJID, CALICUT, PIN-673633.** **BY ADVS. SRI.C.A.NAVAS SRI.SHIRAZ ABDULLA SRI.T.K.SASIKUMAR** ## **RESPONDENTS:** **1 HDB FINANCIAL SERVICES LTD. HAVING ITS REGISTERED OFFICE AT RADHIKA, 2ND FLOOR, LAW GARDEN ROAD, NAVRANGAPURA, AHMEDABAD, REPRESENTED BY THE POWER OF ATTORNEY, MANOJ KUMAR PANICKER, MANAGER, HDB FINANCIAL SERVICES LTD., FIRST FLOOR, ADJACENT FAMILY COURT, CHEROOTTY ROAD, KOZHIKODE, PIN-673032.** **2 THE MANAGING DIRECTOR HDB FINANCIAL SERVICES LTD.,HAVING ITS REGISTERED OFFICE AT RADHIKA, 2ND FLOOR, LAW GARDEN ROAD, NAVRANGAPURA, AHMEDABAD, PIN-380025.** **3 THE REGIONAL TRANSPORT OFFICER KOILANDY, KOZHIKODE DISTRICT-687302.** **BY ADV. SRI.M.A.JOSEPH MANAVALAN SMT C.S.SHEEJA, SENIOR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)No.9586/2018 -2- ## **JUDGMENT** The petitioner, which is stated to be an aided school, which has purchased a Force Traveller Mini Bus bearing registration No.KL-56/M-811, after entering into a hire purchase agreement with the 1[st] respondent, which is a private financier, has filed this writ petition under Article 226 of the Constitution of India seeking the following reliefs; - (i) To call for the records relating to Exts.P1 to P15 and to issue a writ of certiorari or any other appropriate writ, direction or order cancelling or setting aside the sale conducted by the 1[st] and 2[nd] respondents for selling the petitioner's school bus bearing registration No.KL-56/M811, informed after sale vide Ext.P14 to any other person/party being highly arbitrary, illegal, unsustainable, violative of Arbitration and Conciliation Act and violative of principles of natural justice. - (ii) To issue writ of mandamus or any other appropriate writ, direction or order directing the 3[rd] respondent not to change/transfer the (ownership) name of the petitioner in the RTO office records or RC records of the school bus bearing registration No.KL-56/M-811, to any other person. - (iii) To declare that the sale of vehicle during the pendency of the CMA proceedings for custody of vehicle and before attaining any finality in the Arbitration W.P.(C)No.9586/2018 -3- proceedings is premature and clearly amounts to miscarriage of justice and the sale is liable to be set aside and the petitioner is liable to get damages and compensation.” 2. On 20.3.2018 when this writ petition came up for admission, the learned Government Pleader appearing for the 3[rd] respondent sought time to get instructions. Notice on admission was ordered to the respondents 1 and 2. This Court has ordered that status quo (as to change of ownership in the RTO records or certificate of registration of bus bearing registration No.KL-56/M811) shall be maintained for a period of three weeks. The said order, which was extended from time to time, is still in force. 3. A counter affidavit has been filed by respondents 1 and 2 opposing the reliefs sought for in this writ petition. The petitioner has also filed a reply affidavit. 4. On 04.02.2019 when this writ petition came up for consideration, the writ petition was heard for some time. During the course of arguments, learned counsel for respondents 1 and 2 pointed out that C.M.A.No.62 of 2017 filed by the petitioner before the 2[nd] additional District Court, Kozhikode against Ext.P7 order passed by the Arbitrator dated 30.08.2016 in I.A.No.1 of W.P.(C)No.9586/2018 -4- 2016 in Arb.Case No.HDB(BO-COBO-GUR)-0160/June, 2016 has already been dismissed for default on 17.01.2019. The Registry was directed to get telephonic instructions from the District Court, Kozhikode and the matter was listed at 1.45 pm. When the matter was taken up for consideration at 1.45 pm, the Registry has reported that C.M.A.No.62 of 2017 has already been dismissed for non-prosecution on 17.01.2019. As requested by the learned counsel for the petitioner, this matter was ordered to be listed today for further consideration. 5. Heard arguments of the learned counsel for the petitioner, learned counsel for respondents 1 and 2 and also learned Senior Government Pleader appearing for the 3[rd] respondent. 6. The sole issue that arises for consideration in this writ petition is as to whether the petitioner can seek a writ of certiorari to set aside the sale of bus bearing registration No.KL56/M-811 conducted by respondents 1 and 2, which is one conducted invoking the provisions under the hypothecation agreement. 7. Chapter XI of the Rules of the High Court of Kerala, W.P.(C)No.9586/2018 -5- 1971 deals with proceedings under Articles 226, 227 and 228 of the Constitution. Rule 145 deals with form and presentation of an application under Article 226 or under Article 227 or under Article 228. Rule 147 deals with the documents which should accompany such an application under Article 226 or under Article 227 or Article 228. Rule 147 reads thus; - “147. Documents to accompany petitions.- (1) The application shall be accompanied by: - (a) an affidavit verifying the facts relied on, - (b) a copy of the impugned order, if any, and - (c) a schedule of the documents relied on in the affidavit with copies of such of those documents as are in the possession of the petitioner. - (d) synopsis as prescribed in sub-rule (5) of Rule 35. - (2) The copies of the document filed under sub-rule (1) shall be, authenticated as true copies by the Advocate, and, if there be no Advocate by the party. - (3) Two authenticated copies of the application, the affidavit and the annexures thereto for the use of the Court, and in petitions where the State is a respondent, two more copies of the applications, the affidavit and the annexures thereto for the use of that respondent.” 8. Going by clause (b) of sub-rule (1) of Rule 147, if an order is impugned in an application filed under Article 226 or under Article 227 or Article 228 of the Constitution of India such W.P.(C)No.9586/2018 -6- application shall be accompanied by a copy of the order impugned. Further, sub-rule (2) of Rule 147 mandates that the copy of the impugned order and other documents which accompany an application filed under Article 226 or under Article 227 or Article 228 of the Constitution shall be authenticated as true copies by the Advocate and if there is no Advocate, by the party. 9. In **Surinder Singh v. Central Government [(1986)** **4 SCC 667]** , in the context of Article 226 of the Constitution of India, the Apex Court held that, in the absence of the order under challenge, the High Court could not quash the same. Normally, whenever an order of the Government or some authority is impugned before the High Court under Article 226 of the Constitution, the copy of the order must be produced before it. In the absence of the impugned order it would not be possible to ascertain the reasons which might have impelled the authority to pass the order. It is therefore improper to quash an order which is not produced before the High Court in a proceeding under Article 226 of the Constitution. 10. In **A.X. Varghese v. Union of India (1991 (1) KLT** W.P.(C)No.9586/2018 -7- **635)** , in the context of Article 226 of the Constitution of India, a learned Judge of this Court held that a copy of the order under challenge has to be produced along with the original petition. 11. The fact that the hypothecation agreement between the petitioner and respondents 1 and 2 contains an arbitration clause for resolution of disputes is not in dispute. Invoking the said clause in the hypothecation agreement, the dispute was referred for arbitration and it was the Arbitrator, who has passed Ext.P7 interim order dated 30.08.2018 regarding interim custody of the vehicle under hypothecation. Ext.P7 interim order of the Arbitrator, which was one issued in exercise of his powers under sub-section (1) of Section 70 of the Arbitration and Conciliation Act, 1996 was under challenge at the instance of the petitioner in C.M.A.No.62 of 2017 filed before the 2[nd] Additional District Court, Kozhikode. In the said appeal, I.A.No.1951 of 2017 was fled under Order XXXIX Rule 2, read with Section 151 of the Code of Civil Procedure, 1908 for interim mandatory injunction directing the financier to hand over vehicle bearing registration No.KL56/M-811 to the petitioner till the disposal of that appeal. The said interlocutory application ended in dismissal by Ext.P13 order W.P.(C)No.9586/2018 -8- dated 25.01.2018. 12. In the absence of any challenge made by the petitioner, Ext.P13 order in I.A.No.1951 of 2017 in C.M.A.No.62 of 2017 has attained finality. The petitioner, who is a party to the hypothecation agreement, which provides for an arbitration clause, who was participating in arbitration proceedings cannot invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India for redressal of its grievances against the sale of the vehicle. The sale conducted by a private financier invoking the provisions under the hypothecation agreement cannot be set aside by this Court by issuing a writ of certiorari. In the absence of any valid challenge made against the sale conducted by the financier, the petitioner cannot seek the consequential relief, i.e., a writ of mandamus commanding the 3[rd] respondent not to change or transfer the ownership of the said vehicle from the name of the petitioner to any other person. Such reliefs ought to have been sought for in C.M.A.No.62 of 2017, which was pending before the competent Civil Court, and not by invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India. W.P.(C)No.9586/2018 -9- 13. During the course of arguments, the learned counsel for respondents 1 and 2 would also point out that the Arbitrator has already passed an award dated 02.01.2017 and the petitioner has not chosen to challenge the said award in an appropriate proceedings. 14. Having considered the submissions made by the learned counsel on both sides, this Court finds that this writ petition is nothing but an abuse of process of the Court. In the result, this writ petition fails and the same is accordingly dismissed. Sd/- **ANIL K. NARENDRAN JUDGE** dsn W.P.(C)No.9586/2018 -10- ## **APPENDIX** **PETITIONER'S EXTS:** **EXHIBIT P1TRUE COPY OF THE NOTICE NO.SC/LRN/HDB (BOCOBO-CUR)-0160/JUNE 2016 DATED 26/06/2016.** **EXHIBIT P2TRUE COPY OF THE RECEIPT NO.3619043 DATED 30/06/2017.** **EXHIBIT P3THE COPY OF THE RECEIPT NO.3786858 DATED 31/07/2017.** **EXHIBIT P4THE TRUE COPY OF THE NOTICE IN IA.NO.1156/2017 IN OP.NO.165/2017 OF THE DISTRICT COURT, KOZHIKODE.** **EXHIBIT P5THE TRUE COPY OF THE ACCOUNT STATEMENT DATED 10/08/2017.** - **EXHIBIT P6THE TRUE COPY OF OP.NO.165/2017 OF THE DISTRICT COURT, KOZHIKODE.** - **EXHIBIT P7THE TRUE COPY OF THE INTERIM AWARD DATED 30/08/2016 OF ARBITRAR.** - **EXHIBIT P8THE TRUE COPY OF THE ORDER DATED 18/08/2017 IN I.A.NO.1156/2017 IN OP.NO.165/2017 OF THE DISTRICT COURT, KOZHIKODE.** - **EXHIBIT P9THE TRUE COPY OF C.M.A.62/2017 OF THE DISTRICT COURT II, KOZHIKODE.** - **EXHIBIT P10THE TRUE COPY OF I.A.NO.1961/2017 IN C.M.A.NO.62/2017 OF THE DISTRICT COURT II, KOZHIKODE.** - **EXHIBIT P11THE TRUE COY OF THE COUNTER STATEMENT IN I.A.NO.1961/2017 IN C.M.A.62/2017 OF THE DISTRICT COURT II, KOZHIKODE.** - **EXHIBIT P12THE TRUE COPY OF JUDGMENT DATED 19.12.2017 IN WP(C)NO.27185/2017 OF THE HONOURABLE HIGH COURT OF KERALA.** |W.P.(C)No.9586/2018|<br>-11-| |---|---| |**EXHIBIT P13-**|**THE TRUE COPY OF THE ORDER DATED 25/01/2018**| ||**IN I.A.NO.1951/2017 IN C.M.A.NO.62/2017 OF**| ||**THE DISTRICT COURT II, KOZHIKODE.**| |**EXHIBIT P14-**|**THE TRUE COPY OF THE COMMUNICATION DATED**| ||**08/03/2018.**| |**EXHIBIT P15-**|**THE TRUE COPY OF THE QUOTATION DATED NIL.**| |**RESPONDENTS' EXTS: NIL**||