The petitioner opposed the re-possession of his vehicle by a finance company. The High Court held that re-possession was based on an arbitral award which the petitioner could challenge via Section 37 of the Arbitration Act, and thus dismissed the writ petition.
Writ petition dismissed, liberty granted to challenge the arbitral award.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 30TH DAY OF NOVEMBER 2016/9TH AGRAHAYANA, 1938
WP(C).No. 12550 of 2016 (P)
PETITIONER(S):
RAJAMANI, W/O.KUMARAGURU, AGED 49 YEARS, PRIYASADANAM, KULASEKHARAMANGALAM P.O., MARAVANTHURUTH VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT (OWNER OF TIPPER LORRY BEARING REGISTRATION NO.KL-07-AZ-3350).
BY ADV. SRI.P.M.ZIRAJ
RESPONDENT(S)/RESPONDENTS:-:
1. IKF FINANCE LIMITED, BANKING AND FINANCE, REGISTERED OFFICE AT 40-1-144, CORPORATE CENTRE, M.G.ROAD, VIJAYAWADA - 520 010, HAVING ITS BRANCH OFFICE AT THAMMANAM ROAD, PONNURUNNI, VYTTILA, KOCHI - 682 019, REPRESENTED BY ITS BRANCH MANAGER.
2. THE BRANCH MANAGER, IKF FINANCE LIMITED, BANKING AND FINANCE, BRANCH OFFICE AT THAMMANAM ROAD, PONNURUNNI, VYTTILA, KOCHI - 682 019.
3. THE SUB INSPECTOR OF POLICE, VAIKOM POLICE STATION, KOTTAYAM DISTRICT - 686 608.
4. THE STATE POLICE CHIEF, KERALA STATE, THIRUVANANTHAPURAM, PIN - 695 001.
5. THE STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. R1-R2 BY ADVS. SRI.B.ASHOK SHENOY SRI.K.V.GEORGE SRI.P.N.RAJAGOPALAN NAIR SRI.P.S.GIREESH SRI.RIYAL DEVASSY SMT.POOJA DILIP R3-R5 BY GOVERNMENT PLEADER SRI.S.KANNAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
msv/
WP(C).No. 12550 of 2016 (P)
APPENDIX
PETITIONER(S)' EXHIBITS
RESPONDENT(S)' EXHIBITS
//TRUE COPY//
P.S.TO JUDGE
msv/
SHAJI P. CHALY, J.
W.P.(C). No.12550 of 2016 ----------------------------------------------Dated this the 30th day of November, 2016
JUDGMENT
Petitioner purchased a tipper lorry availing financial
assistance from the 1st respondent. According to the petitioner, due to financial crisis, petitioner was not in a position to pay the balance installments and some installments are pending. Matters being so, 1st respondent company is trying to re-possess the vehicle. Accordingly, Police officials attached to the office of the 3rd respondent are trying to re-possess the vehicle. Aggrieved by the same, petitioner has submitted a complaint before the 3rd respondent, but no action has been taken by the 3rd respondent. It is also stated that, the Police have no authority to give assistance to seize the vehicle of the petitioner by using force on the basis of the request of the finance company. These are the background facts persuading the petitioner to approach this court by filing this writ petition.
W.P.(C). No.12550 of 2016
2
loan agreement was violated by the petitioner and repayment was defaulted. Consequent to which, arbitration proceedings were initiated as provided under Ext.R1(a) agreement. In the said process, Ext.R1(b) order is passed by a sole Arbitrator in ARCIA No.12/2016 in ARC No.287/2014 under Section 17(1) of Arbitration & Conciliation Act, 1996, hereinafter called “the Act”. Therefore, according to 1st and 2nd respondents, as per the said order, respondents are entitled as of right to take possession of the subject vehicle bearing No.KL07/AZ3350 from the petitioner. Therefore, respondents contended that, writ petition is not maintainable under law.
W.P.(C). No.12550 of 2016
3
Act itself to make a challenge to the same before the concerned District Court. That being the situation, it cannot be said that, action if any initiated by respondents 1 and 2 to re-possess the vehicle in terms of Ext.R1(a) cannot be said to be bad. I do not find any illegal or other circumstances enabling this court to interfere with the order passed in Ext.R1(b) as this stage of the proceedings.
Therefore, the writ petition is dismissed leaving open the liberty of the petitioner to challenge Ext.R1(b) order passed under Section 17 of the Act.
Sd/-
SHAJI P. CHALY JUDGE
smv 01.12.2016
2 issues framed by the court
Whether this Court can interfere with the possession action of a finance company based on an arbitral award pending challenge.
Whether the Petitioner has an alternative remedy under Section 37 of the Arbitration & Conciliation Act, 1996.
Rajamani, W/o. Kumaraguru
IKF Finance Limited
The Branch Manager, IKF Finance Limited
The Sub Inspector of Police, Vaikom Police Station
The State Police Chief, Kerala State
The State of Kerala
Shaji P. Chaly
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
