Dismissed

Heirs of Hiralal Devabhai Vadher Yashwant Hiralal Vadher v. State of Gujarat

Gujarat HC4 May 2022SCA/7854/2021

Case brief

AI extract

What is this about?

The Gujarat High Court disposed of a writ application challenging a legal notice issued by an advocate. The Court held that no writ lies against a private individual or a private insurance company for issuing a notice or repudiating a claim where statutory consumer remedies are available. The application was dismissed without adjudication on merits.

What did the court decide?

Notice discharged; interim relief vacated; writ application dismissed.

Heirs of Hiralal Devabhai Vadher Yashwant Hiralal Vadher… — Consumer Protection | Gujarat HC (2022)

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C/SCA/7854/2021 ORDER DATED: 04/05/2022

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 7854 of 2021

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With CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2022 In R/SPECIAL CIVIL APPLICATION NO. 7854 of 2021

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HEIRS OF HIRALAL DEVABHAI VADHER YASHWANT HIRALAL VADHER

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Versus

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STATE OF GUJARAT

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Appearance:

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MR SL VAISHYA(960) for the Petitioner(s) No. 1 MS DHARITRI PANCHOLI, ASST. GOVERNMENT PLEADER/PP for the Respondent(s) No. 1

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MR NIKUNJ D BALAR(2763) for the Respondent(s) No. 2 MR RATHIN P RAVAL(5013) for the Respondent(s) No. 4 NOTICE UNSERVED for the Respondent(s) No. 3

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CORAM: HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

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Date : 04/05/2022

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ORAL ORDER

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The present writ application is filed under Article 226 of the Constitution of India, seeking the following relief :

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“Your Lordships may be pleased to pass appropriate writ, order, relief, direction directing to the respondent bank notice dtd. 06/11/2020 of Rs.2,24,384.83 to quash and set aside through his advocate in the interest of justice.”

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The writ applicant herein is aggrieved and dissatisfied by the notice dated 06.11.2020 issued by the respondent No.3 advocate Amit Kumar, which is sent to the petitioner’s and and petitioner regarding Rs.2,24,384.83/- from the credit information company.

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Page 1 of 5

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C/SCA/7854/2021 ORDER DATED: 04/05/2022

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It appears that the petitioner’s father has taken loan from HDFC Bank, Keshod Branch, Dict. Junagadh and the petitioner’s father has taken insurance from HDFC Ergo General Insurance Company. The said certificate of insurance No.2950201622637400000 is duly produced at page no.14 of the petition. It further appears that some installments were due to be paid by the petitioner. Accordingly, the Bank issued notice to the petitioner on 06.11.2020.

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3.1 It is the case of the petitioner that when the vehicle was purchased, at that time the HDFC Bank had also given insurance before taking the possession of the vehicle. An affidavit-in-reply is also filed by the respondent No.4 Bank.

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Mr.Nikunj Balar, the learned advocate appearing for the respondent No.2 - the Branch Manager, HDFC Bank, submitted that the writ applicant has challenged the legal notice issued by the advocate and no further proceedings are initiated by the Bank against the petitioner. It is further submitted that no writ would lie against a private party i.e. an advocate who issued the notice. The advocate is also a party respondent No.3 in the present proceedings.

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Mr.Rathin Raval, the learned advocate appearing for the respondent No.4 – Insurance Company submitted that the claim of the petitioner’s family is

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Page 2 of 5

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C/SCA/7854/2021 ORDER DATED: 04/05/2022

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repudiated. It is open for the writ applicant to avail statutory remedy available to the to the writ applicant by approaching the Consumer Forum against the repudiation letter. Mr.Raval submitted that no writ would lie and that the present writ application may not be entertained.

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It would be appropriate at this stage to refer to the decisions rendered by the Supreme Court.

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6.1 In case of Authorized Officer, State Bank of Travancore Versus K.C. Mathew, reported in 2018 (3) SCC 85 , in paragraph 6, the Supreme Court has observed as under :

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“6 We have considered the submissions on behalf of the parties. Normally this Court in exercise of jurisdiction under Article 136 of the Constitution is loathe to interfere with an interim order passed in a pending proceeding before the High Court, except in special circumstances, to prevent manifest injustice or abuse of the process of the court. In the present case, the facts are not in dispute. The discretionary jurisdiction under Article 226 is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal rule is that a writ petition under Article 226 of the Constitution ought not to be entertained if alternate statutory remedies are available, except in cases falling within the well defined exceptions as observed in Commissioner of

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Income Tax and Others v. Chhabil Dass Agarwal, 2014 (1) SCC 603 , as follows:

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"15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the

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Page 3 of 5

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C/SCA/7854/2021 ORDER DATED: 04/05/2022

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provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titaghur Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.”

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6.2 In case of Shubhas Jain Versus Rajeshwari Shivam, rendered in Civil Appeal No.2848 of 2021, dated 20^th July, 2021 , in paragraph 26, the Supreme Court has observed as under :

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“26. It is well settled that the High Court exercising its extraordinary writ jurisdiction under Article 226 of the Constitution of India, does not adjudicate hotly disputed questions of facts.”

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Having heard the learned advocates appearing for the respective parties and having considered the ratio laid down by the Supreme Court as aforesaid, in view of this Court, the writ would not lie against the respondent No.3 a private person who issued notice to the writ applicant. Further, so far as the claim with respect to the insurance company is concerned, it is open for the writ applicant to avail statutory remedy under the provisions of law as

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Page 4 of 5

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C/SCA/7854/2021 ORDER DATED: 04/05/2022

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available to the writ applicant. This Court has otherwise not assessed the writ application on merits. It is open for the writ applicant to approach the respondent Bank also for further communication.

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With the above observations and directions, this writ application is disposed of. Notice is discharged. Interim relief if any stands vacated.

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In view of the disposal of the main matter, the civil application will not survive and the same stands disposed of.

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Dolly

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Page 5 of 5

Heirs of Hiralal Devabhai Vadher Yashwant Hiralal Vadher v. State of Gujarat

Case brief

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Heirs of Hiralal Devabhai Vadher Yashwant Hiralal Vadher v. State of Gujarat

Case brief

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