Raiju K. Y vs State of Kerala and Others

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 10[TH] DAY OF NOVEMBER 2023 / 19TH KARTHIKA, 1945 ``` ## `WP(C) NO. 26692 OF 2023` ## `PETITIONER:` ``` RAIJU K. Y, AGED 39 YEARS, S/O. YOHANNAN KOORAMTHAZHATHUPARAMBIL HOUSE, CHERUPUZHA, KARULAI, PIN – 679330. ``` ``` BY ADVS. K.C.ELDHO S.BIJILAL EBEE ANTONY ALMAJITHA FATHIMA ``` ## `RESPONDENTS:` ``` 1STATE OF KERALA, REPRESENTED BY SECRETARY TO THE GOVERNMENT DEPARTMENT OF HOME AFFAIRS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695001. ``` - `2 THE SUPERINTENDENT OF POLICE, OFFICE OF THE SUPERINTENDENT OF POLICE THRISSUR DISTRICT-, PIN – 680003.` - `3 STATION HOUSE OFFICER, MANNUTHY POLICE STATION, MANNUTHY PO THRISSUR DISTRICT, PIN – 680651.` - `4 SUB REGIONAL TRANSPORT OFFICER, CIVIL STATION ROAD, UP HILL, NILAMBUR, MALAPPURAM DISTRICT, PIN – 676505.` - `5 MANAGER, *[CORRECTED] TATA MOTOR FINANCE LIMITED, POPULAR MEGA MOTORS INDIA PRIVATE LIMITED, 28TH MILE, NARUKARA PO, MANJERI, MALAPPURAM 676 121.` ``` *ADDRESS OF R5 CORRECTED AS: TATA MOTORS FINANCE LIMITED, REPRESENTED BY ITS MANAGING DIRECTOR ``` ``` WP(C) NO. 26692 OF 2023 ``` ``` -2- ``` ``` HAVING ITS REGISTERED OFFICE AT 14, 4TH FLOOR, SIR DINSHAW BUILDING, 16, HORNIMAN CIRCLE, FORT, MUMBAI - 400 001 ``` ``` (AS PER ORDER DATED 30-09-2023 IN IA1/23 IN WPC). ``` ``` BY ADV.SRI.SUNIL KUMAR KURIAKOSE, GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 26692 OF 2023 ``` ``` -3- ``` ## `JUDGMENT` ``` The petitioner, who is stated to be the registered owner of the vehicle bearing Registration No.KL-71/J4128, admits that it ``` ``` was purchased with financial assistance from the 5[th] respondent – Financial Institution. He alleges that, even though he had serviced ``` ``` the loan account properly, the 5[th] respondent ``` ``` initiated actions under the provisions of the ``` ``` Arbitration and Conciliation Act, 1996 (‘Act’, for short), which is evident from ``` ``` Ext.P7; and unreservedly concedes that an Arbitral Award has been issued by a sole ``` ``` Arbitrator. ``` ``` 2.The petitioner thereafter says that 5[th] respondent, with the aid of ‘goondas’ ``` ``` illegally repossessed the vehicle in ``` ## `WP(C) NO. 26692 OF 2023` ``` -4- ``` ``` question; and therefore, that he preferred Ext.P4 complaint before the 3[rd] respondent – Station House Officer. He imputes that, however, no action has been taken by the said Authority until now; and that, to exacerbate the matter, 5[th] respondent has now approached the 4[th] respondent – Sub Regional Transport Officer,forissuanceofduplicate ``` ``` Registration Certificate for the vehicle in question, which has now been acted upon by the said Authority, as manifest from Ext.P6; ``` ``` and thus prays that same be set aside. ``` ``` 3.Sri.K.C.Eldho, learned counsel for ``` ``` the petitioner further explained his client’s ``` ``` contentions, asserting that 5[th] respondent initiated action under the ‘Act’ by unilaterally and illegally appointing an Arbitrator, thus leading to an unlawful ``` ## `WP(C) NO. 26692 OF 2023` ``` -5- ``` ``` Award; and hence that all action taken by the 4[th] respondent based on it are also illegal. He argued that when the appointment of an Arbitrator by the 5[th] respondent itself is vitiated in law - it falling foul of the declarations of law inPerkins Eastman ``` ``` Architects DPC & Another v. HSCC (India) Limited [AIR 2020 SC 59] - no action can be taken by the official respondents on its basis. He thus prayed that 3[rd] respondent be directed to take appropriate action on Ext.P4; and that Ext.P6 be quashed. ``` ``` 4.Sri.P.Fazil – learned Standing Counsel for the 5[th] respondent, in response, submitted that this writ petition is not maintainable because his client does not come within the sweep of Article 12 of the Constitution of India. He then added that, ``` ``` WP(C) NO. 26692 OF 2023 ``` ``` -6- ``` ``` contractually, his client is entitled to repossess the vehicle, particularly because they have already invoked their remedies before a sole Arbitrator, which is evident from Ext.P7. He added that, consequently, his client also has the competence to move the 4[th] respondent, as they have done, which culminated in Ext.P6 notice. He, therefore, prayed that this writ petition be dismissed. 5.Sri.Sunil Kumar Kuriakose, learned Government Pleader, submitted that the allegations impelled by the petitioner against the Police Authorities are far from true because they are still looking into his complaint, namely Ext.P4. He then added that, however, even going by the case of the petitioner, his vehicle was repossessed by the 5[th] respondent on the strength of an ``` ## `WP(C) NO. 26692 OF 2023` ``` -7- ``` ``` Arbitration Award; and therefore, that unless the same is set aside, his assertions do not appear to be tenable. He explained that this is also the reason why Ext.P6 notice has been issued by the Sub Regional Transport Officer to the petitioner; but pointed that it only calls him for a personal hearing, to show ``` ``` cause why the request of the 5[th] respondent - for issuance of a duplicate registration ``` ``` certificate of the vehicle - be not acceded to. He concluded saying that, therefore, the petitioner can always appear before the fourth respondent pursuant to Ext.P6 and offer his explanation, so that it can be ``` ``` considered in terms of law. ``` ``` 6.I have considered the afore rival submissions, juxtaposed by various materials on record. ``` ``` WP(C) NO. 26692 OF 2023 ``` ``` -8- ``` ``` 7.It is evident from the pleadings and ``` ``` submissions of the petitioner that the 5[th] respondent had invoked the ‘Act’ as per the Arbitration Clause in the Agreement between them; and that a sole Arbitrator was then appointed by them. His specific contention is that this was illegal; but expressly concedes that he did not object to the continuation of the arbitration proceedings, nor did he take any steps to have it interdicted through available legal recourse. It is luculent that, though an Arbitration Award was thus issued, the petitioner maintains, by himself, that same is illegal for the reason that the appointment of a sole Arbitrator by the 5[th] respondent was unlawful, under Section 12(5) of the ‘Act’. 8.It is, therefore, indubitable that ``` ## `WP(C) NO. 26692 OF 2023` **==> picture [22 x 9] intentionally omitted <==** ``` the petitioner ought to have first challenged the Award in terms of law, before he could make an affirmative assertion that it is ``` ``` illegal. This is more so since, the learned counsel for the petitioner submits that, ``` ``` though his client had received Ext. P7 notice ``` ``` from the sole Arbitrator, he chose not to ``` ``` act in any manner until now. ``` ``` 9.For the same reason, I cannot find ``` ``` the allegations of the petitioner against Ext.P7 be to be tenable either, because, as rightly argued by the learned Government Pleader, the Sub Regional Transport officer, Nilambur, has only asked the petitioner to ``` ``` appear before him and explain why the request ``` ``` of the 5[th] respondent - for issuance of a ``` ``` duplicate Registration Certificate of the vehicle - be not acceded to. The petitioner ``` ## `WP(C) NO. 26692 OF 2023` ``` -10- ``` ``` can hence appear before the said Authority ``` ``` and contend why the Arbitration Award cannot ``` ``` be acted upon. ``` ``` In the afore circumstances, this writ ``` ``` petition is ordered with the following ``` ``` directions: ``` - `(a) The third respondent is directed to` ``` take up Ext.P4 complaint of the petitioner and cause necessary investigation into it, ``` ``` without any avoidable delay, if it has not already been done. ``` - `(b) The petitioner will be at liberty to` ``` approach the competent Court if he is not ``` ``` satisfied with the investigation; for which ``` ``` purpose, all his contentions are left open. ``` - `(c) The contentions of the petitioner` ``` against Ext.P6 are left open, and he is at ``` ``` liberty to appear before the Sub Regional ``` ``` WP(C) NO. 26692 OF 2023 ``` **==> picture [30 x 8] intentionally omitted <==** ``` Transport Officer, Nilambur, and oppose the ``` ``` request of the 5[th] respondent. (d) Needless to say, the remedy of the petitioner, to challenge the Arbitration Award, as legally permissible, is fully ``` ``` reserved to him. ``` ``` Sd/- ``` ``` DEVAN RAMACHANDRAN ``` ``` JUDGE ``` ``` akv ``` ``` WP(C) NO. 26692 OF 2023 ``` ``` -12- ``` ## `APPENDIX OF WP(C) 26692/2023` ## `PETITIONER EXHIBITS` - `EXHIBIT P1 A TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE VEHICLE OWNED BY THE PETITIONER VIDE REGISTRATION NO.KL71J/4128` - `EXHIBIT P2 . A TRUE COPY OF THE INVOICE DATED 27.09.2021 DESCRIBING THE LOAN AND ITS DISBURSEMENT BY THE 5TH RESPONDENT` - `EXHIBIT P3 A TRUE COPY OF THE STATEMENT UPTO 30/11/2022 ISSUED BY THE 5TH RESPONDENT` - `EXHIBIT P4 A TRUE COPY OF THE COMPLAINT DATED 30/03/2023 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT SHO` - `EXHIBIT P4(A) TRUE COPY OF THE RECEIPT DATED 30/03/2023 ISSUED BY THE 3RD RESPONDENT` - `EXHIBIT P5 A TRUE COPY OF THE WRITTEN REQUEST SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT RTO DATED 31/05/2023` - `EXHIBIT P5(A) TRUE COPY OF THE ACKNOWLEDGEMENT REGISTRATION SLIP DATED 2/06/2023` - `EXHIBIT P6 . A TRUE COPY OF THE NOTICE DATED 13/7/2023 ISSUED BY THE 4TH RESPONDENT ALONG WITH FORM 37` ``` EXHIBIT P7A TRUE COPY OF THE FIRST NOTICE OF ARBITRATION DATED 30/08/2022 ```