Disposed

Raiju K. Y v. State of Kerala

Kerala HC10 Nov 2023WP(C)/26692/2023

Case brief

AI extract

What is this about?

Petitioner challenged illegal vehicle repossession by a financial institution via Arbitration Award and sought quashing of RTO action. Court directed police investigation into repossession allegations and reserved petitioner's remedy to challenge the Award. Pending contentions on RTO notice.

What did the court decide?

Directing Police to investigate repossession complaint; leaving contentions on RTO notice open and reserving remedy to challenge Arbitration Award.

Raiju K. Y Vs State of Kerala — Arbitration | Kerala HC (2023)

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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 DEVAN RAMACHANDRAN

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FRIDAY, THE 10TH DAY OF NOVEMBER 2023 / 19TH KARTHIKA, 1945

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WP(C) NO. 26692 OF 2023

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PETITIONER:

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RAIJU K. Y, AGED 39 YEARS,
S/O. YOHANNAN
KOORAMTHAZHATHUPARAMBIL HOUSE,
CHERUPUZHA, KARULAI, PIN – 679330.

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BY ADVS.
K.C.ELDHO
S.BIJILAL
EBEE ANTONY
ALMAJITHA FATHIMA

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RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY SECRETARY TO THE GOVERNMENT DEPARTMENT OF HOME AFFAIRS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695001.

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2 THE SUPERINTENDENT OF POLICE, OFFICE OF THE SUPERINTENDENT OF POLICE THRISSUR DISTRICT-, PIN – 680003.

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3 STATION HOUSE OFFICER, MANNUTHY POLICE STATION, MANNUTHY PO THRISSUR DISTRICT, PIN – 680651.

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4 SUB REGIONAL TRANSPORT OFFICER, CIVIL STATION ROAD, UP HILL, NILAMBUR, MALAPPURAM DISTRICT, PIN – 676505.

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5 MANAGER, *[CORRECTED] TATA MOTOR FINANCE LIMITED, POPULAR MEGA MOTORS INDIA PRIVATE LIMITED, 28TH MILE, NARUKARA PO, MANJERI, MALAPPURAM 676 121.

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*ADDRESS OF R5 CORRECTED AS:
TATA MOTORS FINANCE LIMITED,
REPRESENTED BY ITS MANAGING DIRECTOR

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WP(C) NO. 26692 OF 2023

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-2-

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HAVING ITS REGISTERED OFFICE AT 14,
4TH FLOOR, SIR DINSHAW BUILDING,
16, HORNIMAN CIRCLE, FORT,
MUMBAI - 400 001

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(AS PER ORDER DATED 30-09-2023 IN IA1/23 IN
WPC).

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BY ADV.SRI.SUNIL KUMAR KURIAKOSE, GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 10.11.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

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WP(C) NO. 26692 OF 2023

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JUDGMENT

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The petitioner, who is stated to be the
registered owner of the vehicle bearing
Registration No.KL-71/J4128, admits that it
was purchased with financial assistance from

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the 5th respondent – Financial Institution.
He alleges that, even though he had serviced
the loan account properly, the 5th respondent
initiated actions under the provisions of the
Arbitration and Conciliation Act, 1996
(‘Act’, for short), which is evident from
Ext.P7; and unreservedly concedes that an
Arbitral Award has been issued by a sole
Arbitrator.

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2.The petitioner thereafter says that
5th respondent, with the aid of ‘goondas’

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illegally repossessed the vehicle in

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WP(C) NO. 26692 OF 2023

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-4-

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question; and therefore, that he preferred
Ext.P4 complaint before the 3rd respondent –
Station House Officer. He imputes that,

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however, no action has been taken by the said
Authority until now; and that, to exacerbate
the matter, 5th respondent has now approached
the 4th respondent – Sub Regional Transport
Officer,forissuanceofduplicate
Registration Certificate for the vehicle in
question, which has now been acted upon by
the said Authority, as manifest from Ext.P6;
and thus prays that same be set aside.

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3.Sri.K.C.Eldho, learned counsel for

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the petitioner further explained his client’s
contentions, asserting that 5th respondent

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initiated action under the ‘Act’ by

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unilaterally and illegally appointing an
Arbitrator, thus leading to an unlawful

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WP(C) NO. 26692 OF 2023

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-5-

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Award; and hence that all action taken by the
4th respondent based on it are also illegal.
He argued that when the appointment of an
Arbitrator by the 5th respondent itself is
vitiated in law - it falling foul of the
declarations of law inPerkins Eastman

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Architects DPC & Another v. HSCC (India) Limited
[AIR 2020 SC 59] - no action can be taken by
the official respondents on its basis. He
thus prayed that 3rd respondent be directed to
take appropriate action on Ext.P4; and that
Ext.P6 be quashed.

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4. Sri.P.Fazil – learned Standing

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Counsel for the 5th respondent, in response,
submitted that this writ petition is not
maintainable because his client does not come

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within the sweep of Article 12 of the
Constitution of India. He then added that,

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WP(C) NO. 26692 OF 2023

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-6-

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contractually, his client is entitled to
repossess the vehicle, particularly because
they have already invoked their remedies
before a sole Arbitrator, which is evident
from Ext.P7. He added that, consequently, his
client also has the competence to move the 4th
respondent, as they have done, which
culminated in Ext.P6 notice. He, therefore,
prayed that this writ petition be dismissed.

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5.Sri.Sunil Kumar Kuriakose, learned
Government Pleader, submitted that the
allegations impelled by the petitioner
against the Police Authorities are far from
true because they are still looking into his
complaint, namely Ext.P4. He then added that,
however, even going by the case of the
petitioner, his vehicle was repossessed by
the 5th respondent on the strength of an

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WP(C) NO. 26692 OF 2023

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Arbitration Award; and therefore, that unless
the same is set aside, his assertions do not
appear to be tenable. He explained that this
is also the reason why Ext.P6 notice has been
issued by the Sub Regional Transport Officer
to the petitioner; but pointed that it only
calls him for a personal hearing, to show
cause why the request of the 5th respondent -
for issuance of a duplicate registration
certificate of the vehicle - be not acceded
to. He concluded saying that, therefore, the
petitioner can always appear before the
fourth respondent pursuant to Ext.P6 and
offer his explanation, so that it can be
considered in terms of law.

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6.I have considered the afore rival

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submissions, juxtaposed by various materials
on record.

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WP(C) NO. 26692 OF 2023

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7.It is evident from the pleadings and

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submissions of the petitioner that the 5th
respondent had invoked the ‘Act’ as per the
Arbitration Clause in the Agreement between
them; and that a sole Arbitrator was then
appointed by them. His specific contention is
that this was illegal; but expressly concedes
that he did not object to the continuation of

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the arbitration proceedings, nor did he take
any steps to have it interdicted through
available legal recourse. It is luculent
that, though an Arbitration Award was thus
issued, the petitioner maintains, by himself,
that same is illegal for the reason that the
appointment of a sole Arbitrator by the 5th
respondent was unlawful, under Section 12(5)
of the ‘Act’.

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8.It is, therefore, indubitable that

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WP(C) NO. 26692 OF 2023

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the petitioner ought to have first challenged
the Award in terms of law, before he could
make an affirmative assertion that it is

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illegal. This is more so since, the learned
counsel for the petitioner submits that,
though his client had received Ext. P7 notice
from the sole Arbitrator, he chose not to
act in any manner until now.

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9.For the same reason, I cannot find
the allegations of the petitioner against
Ext.P7 be to be tenable either, because, as
rightly argued by the learned Government
Pleader, the Sub Regional Transport officer,
Nilambur, has only asked the petitioner to
appear before him and explain why the request
of the 5th respondent - for issuance of a
duplicate Registration Certificate of the
vehicle - be not acceded to. The petitioner

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WP(C) NO. 26692 OF 2023

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can hence appear before the said Authority

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and contend why the Arbitration Award cannot
be acted upon.

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In the afore circumstances, this writ

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petition is ordered with the following
directions:

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(a) The third respondent is directed to

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take up Ext.P4 complaint of the petitioner
and cause necessary investigation into it,
without any avoidable delay, if it has not
already been done.

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(b) The petitioner will be at liberty to
approach the competent Court if he is not
satisfied with the investigation; for which
purpose, all his contentions are left open.

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(c) The contentions of the petitioner

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against Ext.P6 are left open, and he is at
liberty to appear before the Sub Regional

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WP(C) NO. 26692 OF 2023

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Transport Officer, Nilambur, and oppose the

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request of the 5th respondent.

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(d) Needless to say, the remedy of the
petitioner, to challenge the Arbitration
Award, as legally permissible, is fully

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reserved to him.

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Sd/-

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DEVAN RAMACHANDRAN

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JUDGE

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akv

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WP(C) NO. 26692 OF 2023

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APPENDIX OF WP(C) 26692/2023

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PETITIONER EXHIBITS

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`EXHIBIT P1`	`A TRUE COPY OF THE REGISTRATION` `CERTIFICATE OF THE VEHICLE OWNED BY` `THE PETITIONER VIDE REGISTRATION` `NO.KL71J/4128`
`EXHIBIT P2`	`. A TRUE COPY OF THE INVOICE DATED` `27.09.2021 DESCRIBING THE LOAN AND ITS` `DISBURSEMENT BY THE 5TH RESPONDENT`
`EXHIBIT P3`	`A TRUE COPY OF THE STATEMENT UPTO` `30/11/2022 ISSUED BY THE 5TH` `RESPONDENT`
`EXHIBIT P4`	`A TRUE COPY OF THE COMPLAINT DATED` `30/03/2023 SUBMITTED BY THE PETITIONER` `BEFORE THE 3RD RESPONDENT SHO`
`EXHIBIT P4(A)`	`TRUE COPY OF THE RECEIPT DATED` `30/03/2023 ISSUED BY THE 3RD` `RESPONDENT`
`EXHIBIT P5`	`A TRUE COPY OF THE WRITTEN REQUEST` `SUBMITTED BY THE PETITIONER BEFORE THE` `4TH RESPONDENT RTO DATED 31/05/2023`
`EXHIBIT P5(A)`	`TRUE COPY OF THE ACKNOWLEDGEMENT` `REGISTRATION SLIP DATED 2/06/2023`
`EXHIBIT P6`	`. A TRUE COPY OF THE NOTICE DATED` `13/7/2023 ISSUED BY THE 4TH RESPONDENT` `ALONG WITH FORM 37`
`EXHIBIT P7`	`A TRUE COPY OF THE FIRST NOTICE OF` `ARBITRATION DATED 30/08/2022`

Raiju K. Y v. State of Kerala

Case brief

What is this about?

What did the court decide?

Raiju K. Y v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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