# Rafiq Ahmad v. Union of India and others

- **Citation:** (2010) 1 ILRA 366
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-04-23
- **Case number:** Civil Misc. Writ Petition No. 29390 of 2008
- **Bench:** R.K. Agrawal, Jaya Shree Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rafiq-ahmad-v-union-of-india-and-others-41484
- **Pages:** 3

## Headnote

Constitution of India Art. 226-Release of
Vehicle-financed
by
bank-default
in
payment of installments-bank forcible
seized
the
vehicle
without
taking
recourse of law-in counter affidavit plea
taken by bank regarding seizer by the
agent-held-such action of bank under
the teeth of law laid down by the Apex
Court-direction to restore the possession
of vehicle in actual running conditionwithout charging any interest on loan
during period from the date of seizer to
the actual date of restoration of the
possession-towards
compensation
excluding
this
period-from
time
prescribed in agreement.

Held: Para 8

In this view of the matter, we are of the
considered
opinion
that
the
action
adopted by the bank can not be justified
in law and need to be deprecated. The
bank is, therefore, directed to forthwith
return the vehicle U.P. 70 AT 6632 to the
petitioner in a perfect running condition.
As the petitioner has been deprived
illegally and without the authority of law
from running the vehicle in question from
6.5.2008, the petitioner is entitled to be
compensated. Instead of quantifying the
amount of compensation, we deem fit and
proper and also in the interest of justice
that the bank should not demand any
interest on the amount advanced for the
aforesaid period beginning from 6.5.2008
till the date when the vehicle is returned.
The repayment schedule should also be
extended by excluding the period when
the vehicle was forcibly seized and was in
possession of the bank. We, therefore,
direct that for the period from 6.5.2008
when the vehicle was seized illegally till
its actual return, the bank shall not
realise any interest on the amount of the
loan advanced to the petitioner and,
further for the aforesaid period, there
shall be a moratorium of repayment of
the instalment and it shall begin only
after one month from the date of the
return of the vehicle. As the interest of
the petitioner has been taken care of by
the aforesaid directions, we are not
awarding any cost to the petitioner.

## Text

366 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
9. In view of the fact that the notice
(annexure 2 to the petition) has been
prepared on a printed proforma without
application of mind and is silent in regard
to the substance of information for
initiating the proceedings under sections
107/116 of the Code, the impugned notice
is quashed. It will however be open to the
learned Executive Magistrate to issue a
fresh notice under section 111 of the Code
after making due compliance of the legal
requirements, provided apprehension of
breach of peace subsists on the date of
issue of the fresh notice.

10. With the aforesaid observation,
the petition is allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.04.2010

BEFORE
THE HON'BLE R.K. AGRAWAL, J.
THE HON'BLE JAYA SHREE TIWARI, J.

Civil Misc. Writ Petition No. 29390 of 2008

Rafiq Ahmad

...Petitioner
Versus
Union of India and others ...Respondents

Counsel for the Petitioner:
Sri K.P. Agrawal
Sri Ghazala Bano Quadri

Counsel for the Respondents:
C.S.C.,A.S.G.I.,
Sri Maneesh Trivedi

Constitution of India Art. 226-Release of
Vehicle-financed
by
bank-default
in
payment of installments-bank forcible
seized
the
vehicle
without
taking
recourse of law-in counter affidavit plea
taken by bank regarding seizer by the
agent-held-such action of bank under
the teeth of law laid down by the Apex
Court-direction to restore the possession
of vehicle in actual running conditionwithout charging any interest on loan
during period from the date of seizer to
the actual date of restoration of the
possession-towards
compensation
excluding
this
period-from
time
prescribed in agreement.

Held: Para 8

In this view of the matter, we are of the
considered
opinion
that
the
action
adopted by the bank can not be justified
in law and need to be deprecated. The
bank is, therefore, directed to forthwith
return the vehicle U.P. 70 AT 6632 to the
petitioner in a perfect running condition.
As the petitioner has been deprived
illegally and without the authority of law
from running the vehicle in question from
6.5.2008, the petitioner is entitled to be
compensated. Instead of quantifying the
amount of compensation, we deem fit and
proper and also in the interest of justice
that the bank should not demand any
interest on the amount advanced for the
aforesaid period beginning from 6.5.2008
till the date when the vehicle is returned.
The repayment schedule should also be
extended by excluding the period when
the vehicle was forcibly seized and was in
possession of the bank. We, therefore,
direct that for the period from 6.5.2008
when the vehicle was seized illegally till
its actual return, the bank shall not
realise any interest on the amount of the
loan advanced to the petitioner and,
further for the aforesaid period, there
shall be a moratorium of repayment of
the instalment and it shall begin only
after one month from the date of the
return of the vehicle. As the interest of
the petitioner has been taken care of by
the aforesaid directions, we are not
awarding any cost to the petitioner.

(Delivered by Hon'ble R.K. Agrawal, J.)

1. By means of the present writ
petition, the petitioner seeks a writ, order
or direction in the nature of mandamus
1 All] Rafiq Ahmad V. Union of India and others
367
directing the respondent No. 4 i.e. ICICI
Bank Ltd. Sardar Patel Marg, Civil Lines,
Allahabad to release the Mini Bus Tata
407 having registration No. U.P. 70 AT
6632 to the petitioner. A further direction
is sought in the nature of mandamus to
direct the respondents No. 5 and 6 to
register the case against the respondents
on the basis of an application filed as
Annexure 4 to the writ petition.

2. Briefly stated the facts giving rise
to the present petition are as follows.

3. The petitioner had purchased a
Mini Bus Tata 407, which was financed
by the ICICI Bank Ltd. Civil Lines,
Allahabad. Its registration No. is U.P. 70
AT 6632 and Chasis No. 357166 ATZ
452481 and Engine No. 4075. It was
financed by the ICICI Bank Ltd. under the
terms of an agreement dated 29.3.2007, a
copy of which has been placed on record
by the bank along with the counter
affidavit as Annexure CA 1. It appears
that the petitioner defaulted in payment of
instalments as a result of which it is the
case of the petitioner that the bank
forcibly seized the vehicle on 6.5.2008
without adopting due process of law. We
may mention here that a total sum of
Rs.4,82,762/- was advanced by the bank
for the purchase of vehicle in question
and a monthly instalment of Rs.14,575/-
was fixed towards the loan instalment.
The vehicle was seized on 6.5.2008,
whereafter, the petitioner informed the
Senior
Superintendent
of
Police,
Allahabad, by means of an application
dated 19.5.2008. No action was taken
whereopon, the petitioner has approached
this court seeking aforementioned reliefs.
Counter and rejoinder affidavits have
been exchanged. With the consent of the
learned counsel for the parties, this writ
petition is disposed of finally at the
admission stage itself in accordance with
the Rules of the Court.

4. Learned counsel for the petitioner
submitted that the vehicle was seized by
the recovery agents employed by the bank
on 6.5.2008 without taking recourse to the
provisions of law. She relied upon a
decision of the Apex Court in the case of
ICICI Bank Ltd. Versus Prakash Kaur and
others, (2007) 2 SCC 711, wherein, the
Court has held that the bank should resort
to procedure recognised by law to take
possession of vehicles in cases where
borrower has committed default instead of
resorting to strong arm tactics.

5. Sri Maneesh Trivedi, learned
counsel appearing for the bank submitted
that as the petitioner had defaulted in
payment of monthly instalments, he
voluntarily surrendered the vehicle on
6.5.2008, as per the surrender letter of
even date filed as Annexure 1 to the
counter affidavit. Necessary averments in
this behalf has also been made in
paragraph 7 of the counter affidavit filed
by Ajay Gupta, Collection Manager,
ICICI Bank Ltd. 13, Sardar Patel Marg,
Civil Lines, Allahabad. He, therefore,
submitted that the petition filed for release
of the vehicle is wholly misconceived.

6. We have given our thoughtful
consideration to the various pleas raised
by the learned counsel for the parties.
From the loan agreement, we find that the
petitioner had signed the same in 'Hindi'
whereas, in the surrender document filed
along with the counter affidavit as
Annexure 1, the alleged signature is in
'English'. Further, form a perusal of the
Annexure CA 1, we find that the name of
the petitioner and the address has been
368 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
mentioned in English under the place
mentioned as borrower's name and
address. However, the column containing
the borrower's signature is left blank.

7. Shri Maneesh Trivedi submitted
that the name of Rafiq Ahmad written in
english is his signature. This can not be
accepted for the simple reason that Rafiq
Ahmad had signed the loan agreement in
Hindi and, further the name and address
only contains the name of the petitioner in
English. The signature column is blank
which goes to establish the case set-up by
the petitioner that the recovery agents
employed by the bank forcibly seized the
vehicle from the petitioner for nonpayment of the instalments.

8. In this view of the matter, we are
of the considered opinion that the action
adopted by the bank can not be justified in
law and need to be deprecated. The bank
is, therefore, directed to forthwith return
the vehicle U.P. 70 AT 6632 to the
petitioner in a perfect running condition.
As the petitioner has been deprived
illegally and without the authority of law
from running the vehicle in question from
6.5.2008, the petitioner is entitled to be
compensated. Instead of quantifying the
amount of compensation, we deem fit and
proper and also in the interest of justice
that the bank should not demand any
interest on the amount advanced for the
aforesaid period beginning from 6.5.2008
till the date when the vehicle is returned.
The repayment schedule should also be
extended by excluding the period when
the vehicle was forcibly seized and was in
possession of the bank. We, therefore,
direct that for the period from 6.5.2008
when the vehicle was seized illegally till
its actual return, the bank shall not realise
any interest on the amount of the loan
advanced to the petitioner and, further for
the aforesaid period, there shall be a
moratorium
of
repayment
of
the
instalment and it shall begin only after
one month from the date of the return of
the vehicle. As the interest of the
petitioner has been taken care of by the
aforesaid directions, we are not awarding
any cost to the petitioner.

9. The writ petition stands allowed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.04.2010

BEFORE
THE HON'BLE R.K. AGRAWAL, J.
THE HON'BLE MRS. JAYASHREE TIWARI, J.

Special Appeal No. 1972 of 2009

Dilip Kumar Gupta

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

Counsel for the Petitioner:
Sri Surendra Kumar Mishra
Sri Sanjay Kumar Mishra

Counsel for the Respondents:
C.S.C.
Sri M.C. Mishra
Sri Rajeshwar Singh
Sri Rajnish Dubey
Sri Umesh Kushwaha
C.S.C.

Constitution
of
India,
Art.
226appointment on post of Shiksha Mitra
treating under Physically handicapped
quota-petition dismissed by Single Judge
with specific finding-that certificate of
45% handicapped a forged certificateAppellate Court directed the appellant to
deposit
Rs.25000/-
with
Registrar
General-only thereafter medical board
shall examine about physical disability-