Suniladevi P.S. v. Sakthi Finance Limited & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **FRIDAY, THE 3[RD] DAY OF DECEMBER 2021 / 12TH AGRAHAYANA, 1943** **WP(C) NO. 17394 OF 2021** ## **PETITIONER/S:** **SUNILADEVI P.S AGED 47 YEARS W/O JAYAKUMAR.P.K, POOTHARAYIL,PADINJAREKKARA.P.O, VALLAKAM, KOTTAYAM-686146.** **BY ADVS.** **M.R.SARIN P.SANTHOSHKUMAR (KARUMKULAM)** ## **RESPONDENT/S:** - **1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA-682031.** - **2 THE STATION HOUSE OFFICER VAIKOM POLICE STATION, KOTTAYAM, KERALA-86141.** - **3 SAKTHI FINANCE LIMITED, KOTTAYAM BRANCH, ARYATTUPARAMBIL BUILDINGS, SASTRI ROAD, KOTTAYAM-686001, REPRESENTED BY ITS MANAGER.** - **R3- BY ADV.E.M.MURUGAN** **SR.PP - SRI. P.G.MANU** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.12.2021 ALONG WITH WP(C)NOS.15143/2021 & 15902/2021, THE COURT ON 03.12.2021 DELIVERED THE FOLLOWING:** W.P(C). Nos.15143, 15902 & 17394 of 2021 :2: ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **FRIDAY, THE 3[RD] DAY OF DECEMBER 2021 / 12TH AGRAHAYANA, 1943** **WP(C) NO. 15143 OF 2021** ## **PETITIONER/S:** **SUNILADEVI P.S** **AGED 47 YEARS W/O.JAYAKUMAR P.K., POOTHARAYIL, PADINJAREKKARA P.O., VALLAKAM, KOTTAYAM-686146.** **BY ADV M.R.SARIN** ## **RESPONDENT/S:** - **1 SAKTHI FINANCE LIMITED KOTTAYAM BRANCH, ARYATTUPARAMBIL BUILDINGS, SASTRI ROAD, KOTTAYAM-686001, REPRESENTED BY THE MANAGER.** - **2 THE STATION HOUSE OFFICER, VAIKOM, KOTHANALLOOR, KOTTAYAM, KERALA-686141. BY ADV E.M.MURUGAN** **SR.PP - SRI. P.G.MANU** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.12.2021 ALONG WITH WP(C)NOS.17394/2021 & 15902/2021, THE COURT ON 03.12.2021 DELIVERED THE FOLLOWING:** W.P(C). Nos.15143, 15902 & 17394 of 2021 :3: ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **FRIDAY, THE 3[RD] DAY OF DECEMBER 2021 / 12TH AGRAHAYANA, 1943** **WP(C) NO. 15902 OF 2021** ## **PETITIONER/S:** **SUNILADEVI P.S., AGED 47 YEARS W/O. JAYAKUMAR P.K., POOTHARAYIL, PADINJAREKKARA P.O., VALLAKAM, VAIKOM, KOTTAYAM-686146.** **BY ADV M.R.SARIN** ## **RESPONDENT/S:** - **1 DIRECTOR GENERAL OF POLICE, STATE POLICE HEADQUARTERS, VELLAYAMBALAM THIRUVANANTHAPURAM, KERALA, PIN-695010.** - **2 SAKTHI FINANCE LIMITED, KOTTAYAM BRANCH, ARYATTUPARAMBIL BUILDINGS, SASTRI ROAD, KOTTAYAM-686001, REPRESENTED BY THE MANAGER.** - **3 THE STATION HOUSE OFFICER, VAIKOM, KOTTAYAM, KERALA-686741. BY ADV E.M.MURUGAN** **SR.PP - SRI. P.G.MANU** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.12.2021 ALONG WITH WP(C)NOS.17394/2021 & 15143/2021, THE COURT ON 03.12.2021 DELIVERED THE FOLLOWING:** W.P(C). Nos.15143, 15902 & 17394 of 2021 :4: ## **JUDGMENT** Since common parties and common questions are involved, all these writ petitions are taken together and are disposed of by this common judgment. 2. Petitioner in these writ petitions are one and the same. Going by the averments in W.P.(C) No.17394 of 2021, petitioner had had availed a loan from the 3[rd] respondent Sakthi Finance Limited in respect of a JCB, KL-33-D-9699 and an amount of Rs.10,38,232/- was obtained; according to her, she had made payments till February 2020 very promptly; thereafter, due to the spread of Covid-19 pandemic she could not make monthly remittances as agreed. On 23.07.2021, the vehicle was stolen from a vacant land opposite to the KSRTC bus stand at Vaikom where it was parked, which was immediately reported to the 2[nd] respondent Station House Officer, Vaikom police station, but no action has been taken in spite of furnishing information about the commission of a cognizable offence. So she seeks a writ in the nature of mandamus or order or direction, directing the 2[nd] respondent to repossess the vehicle KL-33-D-9699 from the 3[rd] respondent, i.e. W.P(C). Nos.15143, 15902 & 17394 of 2021 :5: Sakthi Finance, and handover the same to the petitioner within a time limit and to declare that the possession of the vehicle taken by the 3[rd] respondent from the custody of the petitioner on 23.07.2021 is illegal and unsustainable in the eye of law. 3. W.P.(C) No.15143 of 2021 is also in respect of the same vehicle and the respondents are Sakthi Finance Ltd., Kottayam branch and the Station House Officer, Vaikom, Kothanallur. Here the contention is that the said vehicle was taken possession by the 1[st] respondent. Even though she had given the Ext.P6 complaint to the 2[nd] respondent, no action has been taken yet and therefore she seeks to issue a writ in the nature of mandamus or any other appropriate direction or order to the 2[nd] respondent to consider and dispose of Ext.P6 by conducting a proper investigation. Similarly, W.P.(C) No.15902 of 2021 is to issue a writ in the nature of mandamus or any other writ, order or direction, directing the 1[st] respondent, i.e. the Director General of Police, to consider and dispose of Ext.P10 representation given by the petitioner alleging that the vehicle was stolen by the 2[nd] respondent. W.P(C). Nos.15143, 15902 & 17394 of 2021 **==> picture [14 x 9] intentionally omitted <==** 4. I heard the learned counsel for the petitioner, and also the learned Senior Public Prosecutor, besides the learned counsel appearing for the 3[rd] respondent, financier. 5. The petitioner argued that it was a case of forcible possession of the vehicle, that such a conduct of the financier has been deprecated by this Court as well as the Hon'ble Supreme Court in numerous judgments. Even after reporting the theft of the vehicle, the police are remaining dormant and that was why she moved this Court with the writ petitions. 6. On the other hand, the learned Public Prosecutor caused to file a statement by the Station House Officer, Vaikom where he has stated that there was financial arrangements for certain vehicles of the petitioner which is in the ownership of the petitioner; the JCB was parked in a public place opposite to Vaikom KSRTC bus stand. He admits to be in receipt of a complaint from the husband of the petitioner at 9:00 p.m. on 23.07.2021. Immediately, the night patrol team was alerted through wireless and enquiry was conducted and it came out that the JCB was repossessed according to the surrender W.P(C). Nos.15143, 15902 & 17394 of 2021 :7: agreement given by the petitioner and Jayakumar her husband were intimated about the repossession of the vehicle. Now the vehicle is kept in their vehicle yard in Kanakari, that the ingredients of offence under Section 379 IPC were not revealed and thus a crime was not registered. The Station House Officer has also stated that, investigation revealed that Sakthi Finance had given a loan to the petitioner who is the registered owner of JCB, KL-33-D-9699 and tipper lorry KL-36-C-0037. Though the loan amount was not remitted and loan arrear was not paid according to the terms and conditions of the agreement made between the parties, as per the restructured terms of loan, on 30.9.2020 the amount due to Sakthi Finance is Rs.7,45,000/- in respect of the JCB and a sum of Rs.28,839/- is the EMI payable in 36 months. On non payment of monthly instalments for three months, the petitioner agreed to surrender the vehicle to Sakthi Finance. Still amounts were not paid and after continued default for eight months it was taken away by the staff of Sakthi Finance using the second key, now the vehicle is kept in their safe custody in the yard at Kanakari. W.P(C). Nos.15143, 15902 & 17394 of 2021 :8: 7. It is important to note that even the petitioner does not have a case that the vehicle was forcibly taken away by the financier. 8. The learned counsel for the petitioner has relied on the decisions reported in **Manager, ICICI Bank Ltd. v. Prakash Kaur and others [2007 (1) KHC 894], Sabu v. Assistant Commissioner, Cantonment Police Station and others [2008 (3) KHC 849]** to say that strong arm methods should not have been employed by the financier for taking possession of the vehicle. 9. It does not seem that the decisions relied on by the learned counsel for the petitioner have application in the factual situation. 10. On the other hand, the learned counsel for the 3[rd] respondent submitted that the loan was restructured and in spite of the same, no amount was paid, that no force was used, making use of the second key of the vehicle the financier was removing the vehicle from a public place where it was parked and there was no dishonest intention. The counsel also relied on the decisions reported in **Reji P.K. and another v. State of Kerala and another [2016 (3) KHC 661]** and **Gireesh S. v. State of Kerala and another [2013 (3) KLT** W.P(C). Nos.15143, 15902 & 17394 of 2021 :9: ## **S.N. 100].** 11. Even though this is not a hire purchase agreement, evidently the vehicle stood pledged to the 3[rd] respondent after availing a loan. The original amount due to the financier was Rs.10,38,232/-. Later it was restructured and the statement filed by the Inspector of Police indicates that, as per the restructured agreement, Rs.7,45,000/was due to the financier, which was agreed to be repaid in 36 monthly instalments at the rate of Rs.28,839/-. On her own admission, after February 2020 no amount was paid and that was how the vehicle was removed by the financier on 23.07.2021. The Inspector has also produced three documents; one is a communication dated 23.07.2021 issued by the Branch Manager, Sakthi Finance Limited, stating the details of pre-intimation given to the SHO, Vaikom police station informing that they are repossessing the vehicle; the second one is a document signed by the petitioner dated 30.09.2020 which states that she has agreed to restructure the loan; after the restructure she promised to pay the EMI of the loan without any default and that if she does not pay EMI for three consecutive months, she is ready to W.P(C). Nos.15143, 15902 & 17394 of 2021 :10: give back the vehicles and to co-operate with the proceedings of the financier without raising any claim and objection. The other document is a statement, recorded by the Sub Inspector of Police, Vaikom police station, of one Arun K.K., who is the Manager of Sakthi Finance, who has stated about restructuring the loan, etc. 12. In other words, it was not a hire purchase agreement. All the same, there was financial deal between the petitioner and the Sakthi Finance in respect of the JCB. Three vehicles were purchased by her by availing the loan from the financier but for 10 months, payment of all the vehicles had defaulted and then restructuring was done on bilateral agreement and thereafter also repayments were not made. Document dt. 30.9.2020 shows that, on her request, restructuring was done. She had agreed that even after restructuring the loan, if three consecutive payments are defaulted, she will give back the vehicle to the financier and co-operate with the further proceedings. 13. In fact, it is a purely civil dispute touching the repayment of loan amounts availed by the petitioner from the financier. Of W.P(C). Nos.15143, 15902 & 17394 of 2021 **==> picture [20 x 9] intentionally omitted <==** course, there is moral aspect involved. Due to the grim pandemic situation, when there was total lock down for a considerable long period, it may be true that the petitioner who had availed loan might not have been able to honour the agreement. Moratorium declared by the Government and other banks is not applicable to a private financier. But we cannot forget that after February 2020 no payment was made and repossession was made only on 23/7/2021, after a long time. Secondly, there is an agreement on 30.9.2020 by the petitioner undertaking that she will give back the vehicle on default of paying three consecutive EMIs. As the vehicle was not given back, they removed the vehicle from the parking place using the second key. That means, the financier was in his possession the second key of the vehicle that must have been entrusted on the basis of the agreement executed between the parties. In the said circumstances, prima facie an offence under Section 379 IPC cannot be attracted. In order to attract Section 379 IPC, there must be dishonest intention to commit theft of a movable article. In the factual situation the dishonest intention cannot be attributed. As noticed earlier, from February 2020 onwards W.P(C). Nos.15143, 15902 & 17394 of 2021 :12: defaults have been made in lump; payments were not made even after 30.09.2020; still they waited till July 2021 for taking possession of the vehicle. Petitioner does not have a case that force was used for removing the vehicle from the parking place. Therefore, the petitioner is not entitled to get any relief. 14. These cases were slated for pronouncing judgment on 19.11.2021. Before pronouncing the judgment, this Court thought that it is only appropriate, in the pandemic situation, that the parties should be given one more opportunity to think about reach a settlement. Thus the Court ascertained whether the parties are desirous of a mediated settlement, then counsel on both sides said that they are willing to probe the possibilities of settlement of dispute by mediation. Thus both parities were directed to appear before the Nodal Officer, Mediation Centre, High Court on 23.11.2021. Now the Nodal Officer has reported that the dispute could not be settled in mediation. All the Writ Petitions are dismissed. No cost. **SD/K.HARIPAL JUDGE** okb/18.11 //True copy// P.S. to Judge W.P(C). Nos.15143, 15902 & 17394 of 2021 :13: ## **APPENDIX OF WP(C) 17394/2021** PETITIONER EXHIBITS |Exhibit P1|THE TRUE COPY OF THE CERTIFICATE OF| |---|---| ||REGISTRATION| |Exhibit P2|THE TRUE COPY OF THE FINANCE DOCUMENT| ||DT.30.9.2020.| |Exhibit P3|THE TRUE COPY OF THE RECEIPT OF THE PAYMENT| ||OF THE PETITIONER DATED ON 31-12-2019.| |Exhibit P4|THE TRUE COPY OF THE RECEIPT OF THE PAYMENT| ||OF THE PETITIONER DATED ON 31-01-2020.| |Exhibit P5|THE TRUE COPY OF THE RECEIPT OF THE PAYMENT| ||OF THE PETITIONER DATED ON 24-02-2020.| |Exhibit P6|THE TRUE COPY OF THE COMPLAINT FILED BY THE| ||PETITIONER BEFORE THE 2ND RESPONDENT DATED ON| ||23.07.2021.| |Exhibit P7|THE TRUE COPY OF JUDGMENT OF THIS COURT| ||REPORTED IN 2008(3) KHC 849| |Exhibit P8|THE TRUE COPY OF JUDGMENT OF THIS HON'BLE| ||COURT REPORTED IN 2007(3)KHC 510.| W.P(C). Nos.15143, 15902 & 17394 of 2021 :14: ## **APPENDIX OF WP(C) 15902/2021** |PETITIONER EXHIBITS|| |---|---| |Exhibit P1|THE TRUE COPY OF THE CERTIFICATE OF| ||REGISTRATION DATED ON 06/02/2012.| |Exhibit P2|THE TRUE COPY OF THE FINANCE DOCUMENT.| |Exhibit P3|THE TRUE COPY OF THE RECEIPT OF THE PAYMENT| ||OF THE PETITIONER DATED ON 31/12/2019.| |Exhibit P4|THE TRUE COPY OF THE RECEIPT OF THE PAYMENT| ||OF THE PETITIONER DATED ON 31/01/2020.| |Exhibit P5|THE TRUE COPY OF THE RECEIPT OF THE PAYMENT| ||OF THE PETITIONER DATED 24/02/2020.| |Exhibit P6|THE TRUE COPY OF THE COMPLAINT FILED BY THE| ||PETITIONER BEFORE THE 2ND RESPONDENT DATED ON| ||23/07/2021.| |Exhibit P7|THE TRUE COPY OF THE TAX RECEIPT OF KL-36-C-| ||0037 TIPPER ISSUED BY MOTOR VEHICLES| ||DEPARTMENT KERALA DATED 23/07/2021.| |Exhibit P8|THE TRUE COPY OF THE RECEIPT OF THE PAYMENT| ||OF THE PETITIONER TILL FEBRUARY 2021.| |Exhibit P9|THE TRUE COPY OF THE NOTICE ISSUED BY THE 2ND| ||RESPONDENT TO THE PETITIONER ON 22/03/2021.| |Exhibit P10|THE TRUE COPY OF THE REPRESENTATION LETTER| ||FILED BY THE PETITIONER BEFORE THE 2ND| ||RESPONDENT DATED ON 30/07/2021.| W.P(C). Nos.15143, 15902 & 17394 of 2021 :15: ## **APPENDIX OF WP(C) 15143/2021** PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE CERTIFICATE OF REGISTRATION DATED ON 06.02.2012. Exhibit P2 THE TRUE COPY OF THE FINANCE DOCUMENT. Exhibit P3 THE TRUE COPY OF THE RECEIPT OF THE PAYMENT OF THE PETITIONER DATED ON 31.12.2019. Exhibit P4 THE TRUE COPY OF THE RECEIPT OF THE PAYMENT OF THE PETITIONER DATED ON 31.01.2020. Exhibit P5 THE TRUE COPY OF THE RECEIPT OF THE PAYMENT OF THE PETITIONER DATED ON 24.02.2020. Exhibit P6 THE TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED ON 23.07.2021