Disposed

Pear Kombara v. the State of Kerala

Kerala HC17 Dec 2020WP(C)/19532/2020

Case brief

AI extract

What is this about?

This Court disposed of the writ petition filed by a vehicle owner against the lender. The judgment permitted the petitioner to reclaim possession of the repossessed car by depositing 50% of the outstanding loan amount immediately, with the balance paid in four monthly installments, under supervision.

What did the court decide?

Permitted to remit 50% of outstanding amount by 31.12.2020 and balance in four monthly installments; vehicle possession to be handed over on compliance.

Pear Kombara Vs the State of Kerala — Contract and Commercial Disputes | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE N.NAGARESH

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THURSDAY,THE 17TH DAY OF DECEMBER 2020/26TH AGRAHAYANA,1942

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WP(C).No.19532 OF 2020(N)

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PETITIONER:

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PEAR KOMBARA, S/O.LATE K.K.PAUL, 14 B SWAPNIL APARTMENT, NEAR INDORE STADIUM, ERNAKULAM, PIN-682 018, NOW RESIDING AT 5A ASSET SOLITAIR, PANAMPILLY NAGAR, ERNAKULAM, PIN-682 036.

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BY ADVS. SRI.C.R.SIVAKUMAR SMT.MINI.M.NAIR SMT.GAYATHRI V NAIR

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RESPONDENTS:

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1 THE STATE OF KERALA REPRESENTED BY THE PRINCIPLE SECRETARY, DEPARTMENT OF HOME, GOVERNMENT SECRETARIAT, STATUE, PALAYAM (PO), THIRUVANANTHAPURAM (DIST), PIN-695 001.

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2 CHIEF GENERAL MANAGER, RESERVE BANK OF INDIA, ERNAKULAM NORTH, PB NO.3065, LISSY JN, COCHIN, PIN-602018.

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3 THE REGIONAL TRANSPORT OFFICER, OFFICE OF THE REGIONAL TRANSPORT OFFICER, REGIONAL TRANSPORT OFFICE, 2ND FLOOR, CIVIL STATION, KAKKANAD, VAZHAKKALA, ERNAKULAM (DIST), PIN-682 030.

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4 THE STATION HOUSE OFFICER, THEVARA POLICE STATION, THEVARA (PO), ERNAKULAM (DIST), PIN-682 030.

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5 THE MANAGER,DAIMLER FINANCIAL SERVICE INDIA PVT. LTD., AUTHORISED FINANCIAL SERVICES CREDIT PROVIDER, RAJASREE MOTORS PVT. LTD., 2/393(C), NH-47, VYTTILA AROOR BYPASS, NEAR KUNDANOOR JUNCTION, MARADU P.O., KOCHI, ERNAKULAM (DIST), PIN-682 304.

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6 THE MANAGER,M/S. M M ENTERPRISES, 68 IIND CROSS, OBI HALLI, MS NAGAR, BANGLORE, PIN-560 033.

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7 ARJUN, S/O.KRISHNAKUMAR, ANAMOOTTIL HOUSE, EDA KOCHI, PIN-682 010.

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R5 BY ADV. SRI.PRASOUK JAIN R5 BY ADV. SRI.M.P.SHAMEEM AHAMED R5 BY ADV. SHRI.THARIQ MAIDEEN R7 BY ADV. SRI.S.KRISHNALAL R1,3 & 4 BY GOVT. PLEADER SMT. DEEPA NARAYANAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C) No.19532/2020

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J U D G M E N T

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Dated this the 17^th day of December, 2020

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This writ petition has been filed seeking to direct the 5^th respondent to handover the vehicle bearing registration No.KL-07CH-6040 of the petitioner in the light of the illegal repossession from the part of the 5^th respondent.

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The petitioner states that he entered into a hypothecation agreement with the 5^th respondent to purchase a Mercedez Benz car. The petitioner had to make repayment of ₹51 lakhs, in 60 EMIs of ₹1,10,100/- per month. The petitioner claims that he made 37 EMIs promptly, but committed default thereafter. On 02.09.2020, the representatives of the 5^th respondent illegally and forcibly took away the car.

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When this writ petition came up for hearing, this Court passed an interim order on 23.10.2020, ordering status quo on all further legal proceedings on condition that the

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petitioner deposits with the 5^th respondent 50% of the

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outstanding amount as reflected in Ext.P2.

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Learned counsel for the petitioner submitted that as

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directed by this Court, 50% of the amount has been remitted with the 5^th respondent.

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Advocate Prasouk Jain, learned Standing Counsel appearing for the 5^th respondent, on instructions, submitted that the petitioner is a persistent defaulter in remittance of loan and had transported the vehicle to another State, to defeat the claim of the 5^th respondent. It was under extreme circumstances that the 5^th respondent had to resort to repossess the vehicle.

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The learned Standing Counsel for the 5^th respondent further submitted that even after payment of 50% of the outstanding amount as directed by this Court, an amount of ₹15,16,023/- is outstanding as arrears from the petitioner and unless the petitioner remits the said amount in a lump and continues to pay equal monthly instalments, no leniency can be shown to the petitioner.

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I have heard the learned counsel for the petitioner,

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the learned Standing Counsel appearing for the 5^th respondent and the learned Government Pleader for respondents 1, 3 and 4.

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Going through the repayment history of the petitioner, it appears that the petitioner has been regular and making EMIs with promptitude at the initial stage, but he could not keep up with prompt remittances, perhaps due to the Covid pandemic. The learned Standing Counsel for the 5^th respondent would, however, contend that the default occurred even prior to the commencement of the pandemic.

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Taking into consideration of the facts and circumstances of the case, this Court is of the view that in the interest of justice, the writ petition can be disposed of with appropriate directions, safeguarding the interests of the 5^th respondent also.

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Accordingly, the writ petition is disposed of permitting the petitioner to remit 50% of the outstanding amount on or before 31.12.2020. The learned Standing

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Counsel for the 5^th respondent would submit that the outstanding amount as on 31.12.2020 would be around ₹15,25,000/-.

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The petitioner shall remit the balance 50% amount in four equal monthly instalments thereafter commencing from 01.02.2021. Needless to say, the petitioner shall continue to remit the normal equal monthly instalments also as and when they fall due.

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If the petitioner remits 50% of the outstanding amount on or before 31.12.2020 as directed above, the 5^th respondent shall handover the possession of the vehicle to the petitioner. It is made clear that if the petitioner commits default in making remittances as directed above, the 5^th respondent will be at liberty to proceed against the petitioner, in accordance with law. The 5^th respondent will be at liberty to inspect the vehicle during the currency of the loan, if so advised.

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Sd/- N. NAGARESH, JUDGE

aks/17.12.2020

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APPENDIX

PETITIONER'S EXHIBITS:

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EXHIBIT P1 THE TRUE COPY OF THE REGISTRATION PARTICULARS VEHICLE BEARING REGISTER NO.KL 07 CH 6040. EXHIBIT P2 THE TRUE COPY OF THE EMAIL CONTENT OF FINANCIER DATED 24.6.2020. EXHIBIT P3 THE TRUE COPY OF THE STANDARD GENERAL TERMS AND CONDITIONS FOR FACILITIES FOR PURCHASE OF THE VEHICLE. EXHIBIT P4 THE TRUE COPY OF THE UNATTESTED DEED OF HYPOTHECATION NO.10122118 DATED 12.9.2016. EXHIBIT P5 THE TRUE COPY OF THE COMPLAINT WITH ACKNOWLEDGEMENT TO THE PETITIONER DATED 4.9.2020 BEFORE THE 4TH RESPONDENT. EXHIBIT P6 THE TRUE COPY OF THE JUDGEMENT IN WPC NO.18535/2020 DATED 9.9.2020. EXHIBIT P7 THE TRUE COPY OF THE NOTICE SENT BY EMAIL DATED 7.9.2020. EXHIBIT P8 THE TRUE COPY OF THE GUIDELINE ISSUED BY 2ND RESPONDENT DATED 6.8.2020. EXHIBIT P9 THE TRUE COPY OF CIRCULAR 52/2009 OF DGP DATED 18.12.2009.

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EXHIBIT P10 THE TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE COMMISSIONER OF POLICE DATED 21.10.2020 WITH ACKNOWLEDGEMENT.

Pear Kombara v. the State of Kerala

Case brief

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Pear Kombara v. the State of Kerala

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