Court No. - 36.
Case :- WRIT - C No. - 69533 of 2010
Petitioner :- Brij Bhushan Singh
Respondent :- State Of U.P. And Others
Petitioner Counsel :- Shailendra Garg
Respondent Counsel :- C.S.C.
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Hon'ble Ashok Bhushan,J.
Hon'ble Shyam Shankar Tiwari,J.
Heard learned counsel for the petitioner.
By this writ petition, the petitioner has prayed for a writ of
mandamus commanding the respondents No.5 and 6 to return the
truck of the petitioner in good and running condition. Further a writ
of mandamus has been sought commanding the respondent No.2
to lodge a first information report against the respondents No.5 and
6 and take appropriate action.
The respondents No.5 and 6 are Principle Officer and Branch
Manager respectively of Indiabulls Financial Limited, which is a non
banking financial company. The said company sanctioned financial
assistance to the petitioner for purchase of a truck on 27th March,
2008. The petitioner’s case is that out of 44 instalments, 25
instalments were paid by the petitioner and on account of default in
payment of one instalment, the recovery agents of respondents
No.5 and 6 have taken forcible possession of the truck on 8th
September, 2010 from the State of Bihar somewhere in district
Gaya. A notice dated 9th September, 2010 was sent to the petitioner
intimating that the vehicle shall be sold for the dues amounting to
Rs.4,15,456/-. The petitioner thereafter sent a notice to all the
respondents protesting against the action of taking forcible
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possession of the truck and praying that the truck be returned
along with damages.
Learned counsel for the petitioner submits that respondentcompany,
which is a non banking financial company, is notified
Housing Finance Company under the Securitisation and
Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002 (hereinafter referred to as the 2002 Act) . It is
submitted that action for enforcing its security can be taken by
respondents No.5 and 6 only in accordance with the 2002 Act. It is
further submitted that Reserve Bank of India has issued guidelines
dated 24th April, 2008 exercising statutory powers and the action of
respondents No.5 and 6 is in violation of the guidelines of the
Reserve Bank of India.
Learned counsel for the petitioner has placed reliance on
judgments of the Apex Court in the cases of Reserve Bank of
India and others vs. Peerless General Finance and
Investment Company Ltd. reported in A.I.R. 1996 S.C. 646,
Central Bank of India vs. Ravindra and others reported in JT
2001(9) S.C. 101, M/s Sardar Associates and others vs.
Punjab and Sind Bank and others reported in J.T. 2009(10)
S.C. 410 and Sudhir Shantilal Mehta vs. C.B.I. reported in JT
2009(10) S.C. 554.
Learned counsel for the petitioner contends that guidelines
issued by the Reserve Bank of India being statutory guidelines, the
respondents are obliged to adhere to the said guidelines and the
Reserve Bank of India has statutory powers under the Reserve
Bank of India Act, 1934 Act as well as Banking Regulations Act,
1949 to issue statutory guidelines, which are binding on
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respondents No.5 and 6. It is submitted that action of respondents
No.5 and 6 being in violation of the statutory guidelines of the
Reserve Bank of India, this Court may issue mandamus as prayed
for in the writ petition. Learned counsel for the petitioner in this
context has relied on a judgment of the Apex Court in criminal
appeal arising out of S.L.P. (Criminal) No.4935 of 2006 (I.C.I.C.I.
Bank vs. Shanti Devi), decided on 15th May, 2008 as well as a
Division Bench judgment of this Court in Writ Petition No.29390 of
2008 (Rafiq Ahmad vs. Union of India and others) decided on 23rd
April, 2010.
The submissions made by learned counsel for the petitioners
raise substantial question to be considered in the writ petition. The
copy of the guidelines of the Reserve Bank of India, which has been
relied by the petitioner, has been quoted in the notice sent by the
petitioner to the respondents dated 15th October, 2010 (Annexure-4
to the writ petition).
Let notices be issued to respondents No.4, 5 and 6. The
petitioner to take steps for service within a week. Learned Standing
Counsel has accepted notice on behalf of respondents No.1, 2 and
3. The respondents are allowed three weeks’ time to file counter
affidavit.
List on 10th January, 2011.
In the meantime, the vehicle of the petitioner being
Registration No.UP 63H 9717 be not sold in pursuance of the notice
dated 9th September, 2010 (Annexure-3 to the writ petition).
Dated: December 9, 2010.
Rakesh
