# (2012) 1 ILRA 376

- **Citation:** (2012) 1 ILRA 376
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-02-09
- **Case number:** Civil Misc. Writ Petition No. 71057 of 2011
- **Bench:** Vineet Saran, Ashok Pal Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/2012-1-ilra-376-42159
- **Pages:** 9

## Headnote

Constitution
of
India,
Article
226Recovery of loan of Rs. 11,30000/-
payable within 48 monthly installmentspetitioner
already
deposited
Rs.
14,53136
against
liability
of
Rs.
15,55000-44-even
after
deposit
of
substantial
part-forcible
custody
of
vehicle by agent-neither duly appointednor as per terms of guidelines issued by
Reserve
Bank
of
India-petitioner
subjected to an immanence harassmentcontrary to law laid down by Apex CourtBank to re-deliver the possession of
vehicle
in
running
condition-with
exemplary cost of Rs. one Lakh imposed.

Held: Para 23

For the foregoing reasons, this writ
petition succeeds and is allowed. The "
Final Notice After Repossession" dated
24.09.2011 (Annexure-4 to the writ
petition) is quashed and the respondents
are directed to hand over the possession
of the vehicle (truck bearing registration
no. UP-78-BT 1485) to the petitioner
forthwith but not later than seven days
from the date petitioner files a certified
1 All Sri Ram Umrao V. Managing Director Indusland Bank Ltd. and others
377
copy of this order before the respondent
no.3-Branch Manager, Indusland Bank
Ltd. It is further provided that the
petitioner shall not be liable to pay any
interest on the loan amount from the
date when the possession of the vehicle
of the petitioner has been taken from the
petitioner
and
till
the
date
such
possession
is
re-delivered
to
the
petitioner. It is also made clear that the
repossession of the vehicle will be given
to the petitioner in a perfect running
condition free from all encumbrances
and in case there is any dispute with
regard to the condition of the vehicle,
the petitioner shall be entitled to raise
his grievance either with the Bank or
take suitable legal action against the
respondent-Bank.
Case law discussed:
(2007) 2 SCC 711; Citicorp. Maruti Finance
Ltd. Vs. S.Vijayalaxmi in Civil Appeal No. 9711
of 2011 decided on 14.11.2011

## Text

376 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
the land cannot be released. The order dated
29th April, 2011 relates to village Tappal
with regard to which possession was
claimed to have been taken on 27th July,
2009 which possession memo has already
been considered while deciding leading writ
petition. The possession memo has been
brought on record as Annexure-10 to the
Writ Petition No.1341 of 2012 which is the
same possession memo which has been
considered in the leading writ petition. Thus
for the aforesaid reasons, the view of the
State Government that possession stood
transferred to the Company cannot be
accepted and the order dated 29th April,
2011 deserves to be set-aside on the same
ground.

43. In view of the above, all the writ
petitions
stand
allowed
in
following
manner:-

(1)The order dated 11th October, 2011
impugned in Writ Petition No.66066 of
2011 and the order dated 29th April, 2011
impugned in Writ Petition No.1341 of 2012
are set-aside.

(2)A writ of mandamus is issued
directing the State Government to take a
fresh decision with regard to claim of the
petitioners in all the writ petition for release
of their land under Section 48 of the Act in
accordance with the Government order
dated 27th August, 2010.

(3)Parties shall maintain status quo
with regard to nature and possession of the
land in question as existing on the date till
the matter is decided by the State
Government under Section 48 of the Act.

44. Parties shall bear their own costs.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.02.2012

BEFORE
THE HON'BLE VINEET SARAN,J.
THE HON'BLE ASHOK PAL SINGH,J.

Civil Misc. Writ Petition No. 71057 of 2011

Sri Ram Umrao

 ...Petitioner
Versus
Managing Director Indusland Bank Ltd.
and others

 ...Respondents

Counsel for the Petitioner:
Sri R.S. Umrao

Counsel for the Respondents:
Sri B.K. Srivastava
Sri Anubhav Chandra
C.S.C.

Constitution
of
India,
Article
226Recovery of loan of Rs. 11,30000/-
payable within 48 monthly installmentspetitioner
already
deposited
Rs.
14,53136
against
liability
of
Rs.
15,55000-44-even
after
deposit
of
substantial
part-forcible
custody
of
vehicle by agent-neither duly appointednor as per terms of guidelines issued by
Reserve
Bank
of
India-petitioner
subjected to an immanence harassmentcontrary to law laid down by Apex CourtBank to re-deliver the possession of
vehicle
in
running
condition-with
exemplary cost of Rs. one Lakh imposed.

Held: Para 23

For the foregoing reasons, this writ
petition succeeds and is allowed. The "
Final Notice After Repossession" dated
24.09.2011 (Annexure-4 to the writ
petition) is quashed and the respondents
are directed to hand over the possession
of the vehicle (truck bearing registration
no. UP-78-BT 1485) to the petitioner
forthwith but not later than seven days
from the date petitioner files a certified
1 All Sri Ram Umrao V. Managing Director Indusland Bank Ltd. and others
377
copy of this order before the respondent
no.3-Branch Manager, Indusland Bank
Ltd. It is further provided that the
petitioner shall not be liable to pay any
interest on the loan amount from the
date when the possession of the vehicle
of the petitioner has been taken from the
petitioner
and
till
the
date
such
possession
is
re-delivered
to
the
petitioner. It is also made clear that the
repossession of the vehicle will be given
to the petitioner in a perfect running
condition free from all encumbrances
and in case there is any dispute with
regard to the condition of the vehicle,
the petitioner shall be entitled to raise
his grievance either with the Bank or
take suitable legal action against the
respondent-Bank.
Case law discussed:
(2007) 2 SCC 711; Citicorp. Maruti Finance
Ltd. Vs. S.Vijayalaxmi in Civil Appeal No. 9711
of 2011 decided on 14.11.2011

(Delivered by Hon'ble Vineet Saran,J.)

1. The petitioner had taken a loan of
Rs. 11,30,000/- from the respondent-Bank
for purchase of a truck. The said loan was
granted by the bank on 2.2.2008 and was
repayable in 48 monthly instalments ending
on 07.01.2012. The petitioner committed
default in payment of certain instalments
and thus the Bank is said to have issued a
notice dated 01.09.2011 to the petitioner
mentioning that the sum of overdue
instalments in the account of the petitioner
was Rs. 2,22,031/- as on 01.09.2011.
Besides that, additional finance charges of
Rs. 99,915/- plus legal expenses of Rs.
1,000/- along with personal visiting charges
of Rs. 1,000/- were also leviable and thus a
total amount of Rs. 3,23,946/- was
determined as payable by the petitioner. As
per the said notice, the said amount was to
be paid by the petitioner in seven days.
When the same was not paid, on 20.09.2011
the possession of the vehicle of the
petitioner which was financed, was taken
from the petitioner allegedly through the
recovery agent. Thereafter on 24.09.2011
the "Final Notice After Repossession" was
given to the petitioner calling upon him to
pay a sum of Rs. 5,31,177/- as the
settlement amount, within seven days and
take possession of the vehicle. Challenging
the said "Final Notice After Repossession"
dated 24.09.2011 this writ petition has been
filed. A further prayer has also been made
for a direction in the nature of mandamus
commanding
the
respondent-Bank
to
release the truck of the petitioner bearing
registration no. U.P.-78-BT-1485.

2. We have heard Sri R.S.Umrao,
learned counsel for the petitioner as well as
Sri B.K.Srivastava, learned Senior Counsel
appearing for the respondent-Bank and
perused the record. Pleadings between the
parties have been exchanged and with
consent of the learned counsel for the
parties, this writ petition is being disposed
of at the admission stage itself.

3. The submission of the learned
counsel for the petitioner is that the entire
procedure of taking over possession of the
vehicle of the petitioner was illegal
inasmuch as due process of law has not
been adopted by the respondent-Bank and it
has resorted to taking forcible possession of
his vehicle allegedly through its recovery
agent, who was neither duly nor properly
appointed by the Bank in terms of the
guidelines issued by the Reserve Bank of
India. According to his submission, the
person taking possession of the vehicle was
not even the agent who was appointed by
the Bank but some other person. It is also
contended by the learned counsel for the
petitioner that the overdue amount found to
be payable (as per the statement of account
of the Bank itself issued on 26.08.2011) was
378 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
only Rs. 1,11,864.33 paise whereas the
overdue amount shown in the notice dated
1.9.2011 was Rs. 2,22,021/- and what is
now being demanded by the respondentBank vide the impugned notice dated
24.09.2011 is an highly inflated amount of
Rs. 5,31,177/- which is wholly arbitrary and
cannot be justified in law.

4. Sri B.K.Srivastava, learned Senior
Counsel, justifying the action of the
respondent-Bank, has submitted that the
appointment of the recovery agent by the
Bank was in terms of the "Repossession
Agency
Agreement"
executed
on
02.08.2011 between the respondent-Bank
and one M/s Baiswara Associates of
Kanpur and thus the action of the Bank in
taking possession of the vehicle through
such agency was fully justified. It is further
submitted that the respondent-Bank has
validly included such other charges as were
payable by the petitioner under the loan
agreement executed by the petitioner with
the Bank on 02.02.2008 and in case there
was any dispute with regard to the amount
sought to be recovered from or paid by the
petitioner,
the
petitioner
could
have
approached the Bank and the matter could
have been settled between the parties.

5. In the light of the aforesaid
submissions made by the learned counsel
for the parties, we are to examine the action
and manner of the respondent-Bank in
taking over possession of the vehicle of the
petitioner which was financed by the Bank
and also the determination of the overdue
amount by the respondent-Bank as payable
by the petitioner.

6. Before proceeding any further, it
would be relevant to mention that in view of
increasing cases of harassment of the
defaulting borrowers by recovery agents
engaged by the Banks and to stop the
eroding reputation of the Banking Sector as
a whole, the Reserve Bank of India, on
April 24, 2008, has also issued certain
guidelines, some of which are as follows:-

(1) Banks should have a due diligence
process in place for engagement of recovery
agents in conformity with the earlier
guidelines of Reserve Bank of India on
outsourcing of financial services.

(2) Banks should inform the borrower
the details of agency firms.

(3) Banks to ensure that agents carry
with them copy of notice, authorization
letter and identity card during recovery
process.

(4) Whenever recovery agency is
changed bank to notify the borrower of such
change.

(5) The notice to borrower and the
authorization letter of the agent should,
among other details, to also include the
telephone number of the recovery agency.

(6) Banks to ensure tape recording of
the content/text of the calls made by
recovery agents to the customers and vice
versa.

(7) In case a grievance/complaint has
been lodged by a borrower banks are not to
forward his case to recovery agency till they
have finally disposed of the grievance of the
concerned borrower.

(8) Each bank to have a mechanism
whereby the borrower's grievance with
regard to recovery process can be
addressed
and
the
details
of
such
mechanism furnished to the borrower.
1 All Sri Ram Umrao V. Managing Director Indusland Bank Ltd. and others
379

(9) Banks to ensure that their recovery
agents are properly trained.

(10) Banks to ensure that repossession
clause in contract with the borrower is
legally valid and clearly brought to the
notice of the borrower.

(11)
Terms
and
Conditions
of
repossession clause in the contract to
contain provisions regarding notice period
before taking possession; circumstances
under which notice period can be waived;
the procedure for taking possession of the
security; a provision regarding final chance
to be given to the borrower for repayment
of loan before the sale/auction of the
property;
the
procedure
for
giving
repossession to the borrower and the
procedure for sale/auction of the property.

7. Along with the counter affidavit,
the "Repossession Agency Agreement"
dated 02.08.2011 between the Bank and the
said M/s Baiswara Associates has been filed
as Annexure CA-5. The said agreement
contains the ''Obligations of the Agent',
which
includes
sending
of
information/telegram
along
with
the
authorization letter issued by the Bank to
the concerned police station where the asset
is available and where the act of
repossession is to be carried out and furnish
proof of such service to the Bank. Similar
information is also to be sent to the
concerned
police
station
where
the
borrower/co-borrower
resides.
Certain
documents are also required to be kept and
made readily available for production, such
as copy of loan agreement, copies of
reminders/notices, copy of authorization
letter etc. by the agent at the time of taking
repossession of a vehicle. The agent
immediately on seizure is required to get an
inventory list prepared, of the items
available in the vehicle under the signature
of the borrower/driver along with signature
of the two witnesses. The said agreement
also contains certain obligations of the Bank
which includes sending of information
immediately after repossession by the Bank
to the concerned police station under whose
jurisdiction the vehicle is repossessed, to the
borrower/co-borrower and to the police
station where the branch office is located.
The said agreement also provides that the
agent shall not sub-delegate the authority
given to him to any other person. Along
with
the
agreement
the
"KYC
of
Repossession Agency" has also been
enclosed. The said KYC form provides for
information regarding the particulars of the
agency and the names of its employees. In
its particulars the name of repossession
agency has been disclosed as Baiswara
Associates of Kanpur with Mr. Sanjeev
Singh as its sole proprietor. However, no
mention of any employee has been made in
the column meant for name of its
employees.

8. Sri Srivastava does not dispute the
fact that as per the guidelines of the Reserve
Bank of India, the agents are also supposed
to undergo training, which would mean that
either the proprietor of the agency or its
employees
who
are
responsible
for
execution should undergo such training. In
the absence of the names of the employees
in the KYC of the agent and there being no
material
placed
on
record
by
the
respondent-Bank to show that the proprietor
of the Baiswara Associates himself was a
trained person to take possession of the
vehicle, the genuineness of the agency, and
the validity of the agreement with the
agency itself becomes doubtful. Besides
this, it is not the case of the Bank that
information of the appointment of the
recovery agent or its change was ever given
380 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
to the borrower, as is required under the
RBI guidelines.

9. As such from the above it cannot be
said that the agent appointed by the Bank
was a duly or properly appointed agent as
per the guidelines issued by the Reserve
Bank of India who had disclosed complete
information at the time of agreement
including the names of its employees who
were to act on behalf of the agency or that
the Bank had performed its obligations
while appointing such agent, as per the RBI
guidelines.

10.

The
repossession
agency
agreement
is
dated
02.08.2011
and
repossession of the vehicle of the petitioner
has been taken allegedly by the agency on
20.09.2011. As stated by Sri. Srivastava,
learned Senior Counsel for the respondentBank, the repossession has been taken by its
authorized
agency
by
M/s
Baiswara
Associates but a bare perusal of the
"Repossessed
Vehicle
Inventory
List"
which is dated 20.09.2011 (and has been
enclosed as Annexure-CA-4 to the counter
affidavit filed by the Bank) would be
sufficient to belie his said statement. The
seal affixed on the said inventory is that of
"JCS
Financial
Services
&
Parking
Security, Pakri, Kanpur Nagar" and signed
by its official concerned on 20.09.2011at
5.15 p.m. In the entire document the name
of the agency with which the Bank had
entered into an agreement, namely, ''M/s
Baiswara Associates' has neither been
mentioned nor there is any seal affixed of
the said agency. Thus, prima facie M/s
Baiswara Associates, which was the agent
appointed by the Bank, had not taken the
possession of the vehicle of the petitioner.
From the documents produced by the Bank
also it cannot be said that it was any officer
or employee of the agency (M/s Baiswara
Associates) appointed by the Bank who had
taken repossession of the vehicle of the
petitioner. Even otherwise, it has nowhere
been stated or any material placed on record
by the Bank to show that the agent had
carried out its obligations of informing the
concerned police stations i.e. from where
the vehicle was seized and where the
petitioner(borrower) was residing, prior to
taking possession of the vehicle. The
document with regard to repossession also
does not bear the signature of two
witnesses, as was required under the own
agreement filed by the Bank. On behalf of
the petitioner, it bears only the signature of
the alleged driver.

11. It is thus clear from the above that
not only the recovery agent had taken the
repossession in violation of the terms and
conditions as laid down in the own
agreement of the Bank with the agency, but
the
agent
M/s
Baiswara
Associates
authorized by the Bank had sub-delegated
its authority to another agent in gross
violation
of
the
specific
prohibitory
condition laid down by the Bank.

12. The Apex Court in the case of
ICICI Bank Ltd. Vs. Prakash Kaur
(2007)2 SCC 711 has deprecated the
practice of the Banks of hiring recovery
agents and deputing muscle-men, to seize
the vehicles and has observed that the
Banks should resort to the procedure
recognized by law for taking possession of
the vehicle of the borrowers, who may have
committed default in payment of the
instalments. Observation by the Apex Court
was made in the following terms: (SCC
Page 714, para16):-

"16 - Before we part with this matter,
we wish to make it clear that we do not
appreciate the procedure adopted by the
1 All Sri Ram Umrao V. Managing Director Indusland Bank Ltd. and others
381
Bank in removing the vehicle from the
possession of the writ petitioner. The
practice of hiring recovery agents, who are
muscle-men, is deprecated and needs to be
discouraged. The Bank should resort to
procedure recognized by law to take
possession of vehicles in cases where the
borrower may have committed default in
payment of the instalments instead of taking
resort to strong-arm tactics."

13. In the above case of ICICI Bank
Vs. Prakash Kaur (supra), it has also been
observed by the Apex Court that the
recovery of loan or seizure of vehicles could
be done only though legal means. This
observation was made by the Apex Court in
the following terms (SCC Page 720, para
28):-

" 28 - In conclusion, we say that we
are governed by the rule of law in the
country. The recovery of loans or seizure of
vehicles could be done only through legal
means. The banks cannot employ goondas
to take possession by force."

14. In yet another case Citicorp.
Maruti Finance Ltd. Vs. S.Vijayalaxmi in
Civil Appeal No. 9711 of 2011 decided on
14.11.2011, the Apex Court consisting of a
Bench of three Judges (Hon'ble Altmas
Kabir, Hon'ble Cyriac Joseph and Hon'ble
Surinder Singh Nijjar, JJ) has on the issue
of illegal and/ or wrongful recovery of
vehicles by use of force has reiterated its
above view as under:-

"The aforesaid question has since been
settled by several decisions of this Court
and in particular in the decision rendered in
ICICI Bank Ltd. Vs. Prakash Kaur (supra).
It is, not, therefore, necessary for us to go
into the said question all over again and we
reiterate the earlier view taken that even in
case of mortgaged goods subject to Hire-
Purchase Agreements, the recovery process
has to be in accordance with law and the
recovery process referred to in the
Agreements
also
contemplates
such
recovery to be effected in due process of law
and not by use of force. Till such time as the
ownership is not transferred to the
purchaser, the hirer normally continues to
be the owner of the goods, but that does not
entitle him on the strength of the agreement
to take back possession of the vehicle by use
of force. The guidelines which had been laid
down by the Reserve Bank of India as well
as the Appellant Bank itself, in fact, support
and make a virtue of such conduct. If any
action is taken for recovery in violation of
such guidelines or the principles as laid
down by this Court, such an action cannot
be struck down."

15. It would also be not out of place to
mention here that it has not been the case of
the respondent- Bank that they complied
with the guidelines of the Reserve Bank of
India. As such, the whole action of the
respondent-Bank
in
taking
back
the
possession of the vehicle of the petitioner,
details of which have been given here-inabove, cannot be justified and it clearly
appears that the Bank had resorted in taking
repossession of the vehicle by the help of
muscle-men.

16. It thus becomes evident that the
repossession was taken by the Bank in
flagrant violation of the guidelines issued by
the Reserve Bank of India and also the law
laid down by the highest Court of the
country.

17. No doubt an agreement had been
entered into between the petitioner and the
bank which provides for ''Lender's Right'
which may include the right of the Bank to
382 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
take possession of the vehicle in case of
default, but what is to be considered here is
as to whether the Bank itself could
determine that there was a default and
thereby start proceedings to take possession
of the vehicle financed by it without
resorting to the procedure prescribed by
law. In the present case, what we notice is
that no prior information was given to the
petitioner before taking possession of the
vehicle. In the counter affidavit a notice is
said to have been sent to the petitioner on
01.09.2011, a copy of which has been filed
as Annexure CA-3 to the counter affidavit.
From a perusal of the said notice dated
01.09.2011 it is clear that neither the name
mentioned in the notice is that of the
petitioner nor the address is that of the
petitioner which is given in the impugned
notice (Final Notice After Repossession)
dated 24.09.2011 which is the one which
was received by the petitioner. The notice
dated 01.09.2011 is addressed to "Sri Ram
Maurya s/o Sri Ayodhya Prasad Maurya,
R/o Kunderampur, Post Birhai, Tehsil
Ghatampur,
District
Kanpur
(U.P.)"
whereas the name of the petitioner in the
notice dated 24.09.2011 "Sri Ram Umrao
s/o Ayodhya Prasad, R/o Kunderampur,
Amouli, Fatehpur". Thus from the above it
is clear that the respondent-Bank has
proceeded against the petitioner even
without giving a valid notice to him,
meaning thereby there was no occasion for
the petitioner to reply to the Bank about the
correctness of its notice or to produce
evidence to show as to whether there was
any default made by him till such date or
not.

18. In case of default in repayment of
its loan, it is always open for the Banks to
get the agreement with its borrower
enforced through the process of law. Under
the common law, the Bank could have
approached the Court for enforcement of
the agreement. Even the Securitization and
Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002
(hereinafter referred to as the "Act of 2002")
which gives special power to the Bank for
realization of its dues also provides for
certain safeguards. Section 13(2) of the Act
of 2002 has been interpreted by the Apex
Court in the case of Mardia Chemicals that
the borrower has a right to submit his reply
to the said notice. Pursuant to the decision
of the Apex Court, sub section (3A) of the
Section 13 has been inserted making it
obligatory on the financial institutions
(including Banks) to pass an order after
considering the reply submitted by the
borrower.
It
is
only
thereafter
that
proceedings for taking over possession can
be initiated under Section 13(4) of the Act
of 2002.

19. The Bank or financial institution
cannot be permitted to take a decision on
their own that there has been a default and
proceed
to
take
possession
of
the
hypothecated vehicle without giving an
opportunity to the borrower to present his
case. In this manner the Banks would be
judging their own cause with the right of
execution,
as
they
themselves
would
unilaterally determine that there has been a
default and proceed to execute their own
decision by taking possession of the
hypothecated vehicle through their own
appointed agencies, which may be musclemen. Adopting such a recourse would clearly
be a blatant violation of the mandate of
Hon'ble Supreme Court.

20. Coming to the next issue, which is
with regard to the amount which is said to be
due to be paid by the petitioner, it may be
observed that as per the statement of account
issued
by
the
Bank
on
26.08.2011
1 All Sri Ram Umrao V. Managing Director Indusland Bank Ltd. and others
383
(Annexure-2 to the writ petition) the overdue
found as on the said date was Rs.
1,11,864.33 paise. Then by the alleged notice
dated 01.09.2011 brought on record by the
Bank, which is admittedly addressed to a
wrong person, the overdue amount as on
01.09.2011 has been shown to be Rs.
2,22,031/- plus additional finance charges of
Rs. 99,915/- plus other charges amounting to
Rs. 3,23,946/-. The learned counsel for the
Bank, when asked as to under which
provision the additional finance charges of
Rs. 99,915/- had been added, miserably
failed to justify the said amount. However,
the unilateral increase in the overdue amount
did not stop here. By the time possession of
the vehicle was taken after the notice dated
01.09.2011 and merely 24 days had passed,
the said amount had swollen to Rs.
5,31,177/- as would be clear from the
impugned notice dated 24.09.2011. Not only
this, along with the counter affidavit the
Bank is said to have obtained an affidavit
from
the
petitioner
on
02.12.2011
mentioning that as on 30.11.2011 the amount
due was Rs. 5,65,000/-. Along with the
counter affidavit the respondent-Bank has
also filed the statement of account as on
03.01.2012 which shows that the overdue
amount as on that date was Rs. 3,21,298.43
paise. Then respondent-Bank has also filed
the settlement proposal dated 04.01.2012
according to which on the said date the
settlement amount was Rs. 5,25,504.13
paise. Thus from the own statements of
account of the Bank as well as the notice
issued to the petitioner, it is prima facie
evident that there is a huge variation in the
amount which has been found to be over due
or to be paid by the petitioner.

21. In the facts of the present case,
from the own records of the respondentBank it is clear that the petitioner has been
put to an immense harassment. As per the
statement of account dated 26.08.2011, and
the total amount which was due to be paid by
the petitioner till that date was Rs.
15,65,000.33 pise, whereas he already had
paid till then Rs. 14, 53,136/- meaning
thereby that the petitioner had paid a very
substantial part of the loan amount and still
the respondent-Bank resorted to the action of
taking possession of the vehicle of the
petitioner in an illegal and arbitrary manner
without following the process of law.

22. Admittedly, in the present case no
proper notice addressed to the petitioner had
ever been issued prior to the taking over of
possession of the vehicle on 20.09.2011. The
respondent-Bank was so callous that it did
not even bother to ensure that the notice
dated 01.09.2011 was sent at the correct
address with correct name of the petitioner. It
is noticed that even the impugned "Final
Notice
After
Repossession"
dated
24.09.2011 also does not give the details as
to how the amount of Rs. 5,31,177/- was
recoverable and the same appears to have
been issued in a mechanical manner without
even mentioning the fact as to on which date
the due notice had been given to the
petitioner, as the column in that regard has
been left blank. As such, the impugned
notice dated 24.09.2011 is liable to be
quashed. Such action of the respondentBank, in firstly issuing the notice to a wrong
person and then taking possession of the
vehicle of the petitioner through an agency
which was not at all appointed by it and the
agency with which agreement was made by
the Bank not appointed as per the guidelines
of the Reserve Bank of India and above all
the procedure adopted by the agency taking
possession of the vehicle of the petitioner on
20.09.2011 being in complete violation of
the Banks own agreement and guidelines of
the Reserve Bank of India, cannot at all be
justified.
384 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

23. For the foregoing reasons, this writ
petition succeeds and is allowed. The " Final
Notice
After
Repossession"
dated
24.09.2011 (Annexure-4 to the writ petition)
is quashed and the respondents are directed
to hand over the possession of the vehicle
(truck bearing registration no. UP-78-BT
1485) to the petitioner forthwith but not later
than seven days from the date petitioner files
a certified copy of this order before the
respondent no.3-Branch Manager, Indusland
Bank Ltd. It is further provided that the
petitioner shall not be liable to pay any
interest on the loan amount from the date
when the possession of the vehicle of the
petitioner has been taken from the petitioner
and till the date such possession is redelivered to the petitioner. It is also made
clear that the repossession of the vehicle will
be given to the petitioner in a perfect running
condition free from all encumbrances and in
case there is any dispute with regard to the
condition of the vehicle, the petitioner shall
be entitled to raise his grievance either with
the Bank or take suitable legal action against
the respondent-Bank.

24. The high handed and illegal
manner in which the Bank has repossessed
the petitioner's vehicle through an agent,
which cannot but be described but as by use
of "musclemen", inspite of the repeated
directions of the Apex Court and the manner
in which the petitioner has been harassed, we
also impose an exemplary cost of Rs.
1,00,000/- (Rs. One Lakh) to be paid to the
petitioner by the respondent-Bank so that in
future it may deter the Bank from taking
such recourse for realization of dues, as has
been resorted to in the present case.
---------

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.02.2012

BEFORE
THE HON'BLE SUDHIR KUMAR SAXENA, J

Criminal Revision No. 635 of 2011
connected with
Criminal Misc. Writ Petition No. 17658 of
2010

Manoj Anand

 ...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri A.M. Tripathi

Counsel for Respondent:
Sri Nipun Singh
Govt. Advocate

(A) Constitution of India, Article 226Non Protection of women from Domestic
violence Act-2005, Section 23- Interim
maintenance of Rs. 5000/- granted
under section 23 of the Act-considering
income of Rs. 28738/-per month-cannot
be termed as excessive-warrant no
interference-petition dismissed.

Held: Para 6

This Court is not exercising its appellate
jurisdiction. The court below is yet to
decide
the
apliction
finally
after
recording the evidence. Even otherwise
considering the income of petitioner the
amount awarded cannot be said to be
excessive as such impugned orders do
not suffer from any such error of law
which may warrant interference by this
Court in its jurisdiction under Article 226
of the Constitution of India, as such writ
petition has no force and is liable to be
dismissed.

(B) Protection of women from domestic
violence
Act
2005-Section
31-