Dismissed

Abdul Subhan v. M/S. Shriram Transport Finance Co. Ltd.

Karnataka HC1 Aug 2024WP/59682/2015

Case brief

AI extract

What is this about?

In a writ petition under Articles 226 and 227, the petitioner challenged an order imposing attachment of movables during execution proceedings. The High Court held that parallel arbitration and criminal proceedings for dishonoured cheques were maintainable and dismissed the petition.

What did the court decide?

No relief; writ petition dismissed; petitioner's argument against attachment warrant rejected.

Abdul Subhan Vs M/S. Shriram Transport Finance Co. Ltd. — Cheque Dishonour | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:10852 WP No. 59682 of 2015

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IN THE HIGH COURT OF KARNATAKA,

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DHARWAD BENCH

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DATED THIS THE 1^ST DAY OF AUGUST, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE H.P.SANDESH

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WRIT PETITION NO. 59682 OF 2015 (GM-RES)

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BETWEEN:

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ABDUL SUBHAN S/O. SHEIK IMAM SAB, AGED ABOUT 58 YEARS, OCCUPATION: DRIVER, RESIDENT OF KILLA AREA, NEAR: SALONI MEDICAL STORE, GANGAVATHI-583 227, DIST: KOPPAL.

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…PETITIONER

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(BY SRI. DEEPAK MAGANUR, ADV. FOR SRI. CHANDRASHEKAR P. PATIL, ADV.)

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AND:

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GIRIJA A BYAHATTI

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Location: HIGH COURT OF KARANTAKA DHARWAD BENCH

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M/S. SHRIRAM TRANSPORT FINANCE CO. LTD., NO.123, NAGAPPA NAIKEN STREET, CHENNAI, BRANCH: AT KOPPAL, REPRESENTED BY SHARANAIAH S/O. BASAIAH, OCCUPATION: G.P.A. & FIELD EXECUTIVE, R/O. KOPPAL, DIST: KOPPAL-583 201.

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…RESPONDENT

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(BY SRI. ANANT KUMAR S. HABIB, ADVOCATE - ABSENT)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI QUASHING THE ORDER DATED 9.12.2015, PASSED BY THE LEARNED DISTRICT & SESSIONS JUDGE, KOPPAL IN EX.P.NO.81/2014 PRODUCED AS ANNEXURE-F.

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THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

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2 - NC: 2024:KHC-D:10852 WP No. 59682 of 2015

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CORAM: THE HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE H.P.SANDESH)

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Heard the learned counsel for the petitioner. Learned counsel for the respondent is absent.

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In this petition, the petitioner prayed this Court to issue writ the nature of certiorari quashing the order dated 09.12.2015, passed by the learned District Sessions Judge, Koppal, in Execution Petition No.81/2014, in terms of Annexure-F, wherein the Court has issued attachment warrant of movables against the JDR No.1.

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The main contention of the petitioner in this petition is that, the respondent issued legal notice to the petitioner claiming Rs.3,60,100/- on the basis of dishonor of cheque and reply was given. The respondent filed CC No.3132/2013 before the Mumbai Court. The respondent also filed Execution Petition No.81/2014, claiming Rs.3,14,368/- and the Court has

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3 - NC: 2024:KHC-D:10852 WP No. 59682 of 2015

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issued attachment warrant of movables and hence filed this writ petition.

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The very contention of the petitioner’s counsel is that, the learned Judge is not justified in passing the impugned order of issuance of attachment warrant of movable properties. Once the respondent has initiated proceedings under Section 138 of the Negotiable Instruments Act, and when the same is pending, with the mala fide intention, the respondent obtained the Arbitration Award at Chennai, which is unknown to law and they cannot initiate parallel proceedings for the same cause of action. It is contended that the Court cannot maintain Execution Petition and hence the very issuance of attachment warrant against the petitioner is liable to be set aside.

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Having perused the pleadings of the petitioner, it is not in dispute that by availing loan of Rs.2,00,000/-, the petitioner purchased a Lorry and executed loan- cumhypothecation agreement in favor of the respondent. It is also stated that the petitioner was promptly paying

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4 - NC: 2024:KHC-D:10852 WP No. 59682 of 2015

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loan installments in the beginning. Since there was no demand for hire of Lorry, the petitioner was unable to make further installments and the bank forcibly stopped and illegally seized the Lorry and parked the same in the APMC area in Gangavati Town. Due to the seizure of Lorry, the petitioner was unable to make payment of installments. It is also contended that the cheques which were given were also not encased and when criminal proceedings initiated invoking Section 138 of the Negotiable Instruments Act, the respondent ought not to have initiated the proceedings of arbitration.

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Having perused the material on record, when the document was executed and when there was an Arbitration Agreement between the petitioner and the respondent bank, the respondent bank has proceeded to recover the amount by appointing the Arbitrator and Arbitration Award was also passed. The petitioner has not challenged the Arbitration Award and Execution Petition was filed in E.P.No.81/2014 to enforce the

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5 - NC: 2024:KHC-D:10852 WP No. 59682 of 2015

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Arbitration Award. The District Court has passed an order of attachment of movables and the very contention that District Court is not having any right to attach the movables cannot be accepted. The Execution Petition is filed only to enforce the Arbitration Award and when same is filed, the contention that there cannot be any parallel proceedings cannot be accepted. When the installment amount was not paid and cheques were bounced, a proceeding is initiated against the petitioner by causing notice and cognizance was taken in the criminal case. The same is in respect of bouncing of cheque and initiation of criminal proceedings cannot curtail the right of the bank to initiate the proceedings of Arbitration. When there is an agreement between the parties to approach the Arbitrator if any dispute arises between the parties and when the arbitration proceedings was initiated and award has been passed and the same has not been questioned, the very contention of the petitioner that

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6 - NC: 2024:KHC-D:10852 WP No. 59682 of 2015

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this Court has to quash the order dated 09.12.2015 cannot be accepted.

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Hence I do not find any merit in the petition to allow the petition and quash the order dated 09.12.2015. The learned District and Sessions Judge has the power to pass such an order to enforce the award passed by the Arbitrator.

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In view of the above discussion made, I pass the following:

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ORDER

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Writ petition is dismissed.

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Petitioner’s counsel submits that he has deposited

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an amount of Rs.60,000/- and the same is payable in favor of the respondent, on proper identification.

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Sd/(H.P.SANDESH) JUDGE

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gab CT-MCK List No.: 1 Sl No.: 46

Abdul Subhan v. M/S. Shriram Transport Finance Co. Ltd.

Case brief

What is this about?

What did the court decide?

Abdul Subhan v. M/S. Shriram Transport Finance Co. Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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