TMI Blog2020 (12) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... tition by the PNB before the DRT, rather he has contested the said case also. In view of the fact that the petitioner/borrower is a willful defaulter, whose loan account turns NPA, the PNB after giving proper notice etc., has taken the possession of the vehicle through its recovery agent. So far as the conduct of the Bank, while taking possession of the vehicle, same cannot be held to be illegal one, as in view of the hypothecation deed entered into between the borrower and the financer, the purchaser is merely a trustee/ bailee and the ownership remains with the Bank, till full recovery of the loan amount - In case vehicle is seized by financier, no criminal action can be taken against him as he is repossessing goods owned by him, for violation of conditions of higher purchase agreement/ defaulted in making payment, etc. The impugned order reveals that the learned trial Court being aware of the fact that the Bank has ground for resuming the possession of the vehicle, has not taken any cognizance against them under Sections 420/406/120B of the IPC but has taken cognizance only against the offence under Section 323/506 of the IPC. That being so, the Court has erred in passing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd by the Bank. As the borrower defaulted in paying the EMI, the PNB issued various notices since 2015-17, to pay the due indicating that otherwise the PNB will be forced to take possession of the hypothecated vehicle and to sale the same for recovery of the outstanding dues. The petitioner (borrower) requested the PNB on 29.08.2017, to give him opportunity to repay the overdue amount within a period of 30 days. As the petitioner failed to clear the overdue amounts to the PNB, even after his assurance, all the four accounts of the petitioner were classified as NPA and thereafter the PNB served notice upon the petitioner to pay the outstanding amount of ₹ 79,88,518/- by the recall notice dated 21.10.2017. One of the hypothecated vehicles (the Audi Car bearing Regn. No.AS 01 BV 0004) was taken into possession by the PNB thereafter and then the petitioner again made an application to the Bank on 02.11.2017, with the assurance to pay the overdue amount within 25.02.2018 and in view of such assurance, said vehicle was returned to the possession of the petitioner but he did not maintain the sanctity of his promise and accounts were not regularized. In that situation, the PNB reques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to take the interim custody, which shall be adjusted with the loan and in doing so the bank shall immediately give back the possession of the vehicle to the petitioner. (ii) That the petitioner shall regularly make the Equated Monthly Instalment and to that effect the petitioner shall furnish a bond to the bank. (iii) That the petitioner shall not transfer the vehicle by whatever means while remaining the vehicle in his custody. (iv) In case the petitioner fails to pay three Equated Monthly Instalment at a stretch, the bank will have right to resume the possession of the vehicle. 5. The petitioner did not comply with the above order and instead filed a revision petition against the order dated 28.11.2018, before the Court of learned District Sessions Judge, Kamrup, vide Criminal Revision Case No.9/2019, challenging that the trial Court has erred in imposing conditions while granting interim custody of the vehicle and the learned revisional Court by its order dated 13.06.2019, has affirmed the order of the trial Court and dismissed the revision. 6. Thereafter the petitioner Madhab Kumar Das preferred the Criminal Petition No.1135/2019 before this Court, challenging ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out the dues amounting to ₹ 78,79,978.34 to the Bank. It is also an admitted position that the PNB has already filed the O.A. No.328/2018 before the DRT, Guwahati, which is pending at the stage of final hearing. The petitioner/borrower has not at all denied any of the documents referred above about the execution of the hypothecation deed, dated 10.12.2014, as well as taking of loan for four vehicles from the PNB and also about the filing of the claim petition by the PNB before the DRT, rather he has contested the said case also. In view of the fact that the petitioner/borrower is a willful defaulter, whose loan account turns NPA, the PNB after giving proper notice etc., has taken the possession of the vehicle through its recovery agent. So far as the conduct of the Bank, while taking possession of the vehicle, same cannot be held to be illegal one, as in view of the hypothecation deed entered into between the borrower and the financer, the purchaser is merely a trustee/ bailee and the ownership remains with the Bank, till full recovery of the loan amount. The said proposition has been asserted by the Hon ble Apex Court in Anup Sarmah vs. Bhola Nath Sharma, reported in (2013) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f outstanding dues and the possession of the vehicle. The petitioner/borrower who is a willful defaulter, after repeated assurance/promise cannot be given indulgence again and again to repay his loan and the Bank is at liberty to go for legal recourse which they have already adhered to, by filing application before the DRT. 13. The prayer of the petitioner Madhab Kumar Das, made in the instant petition indicates that he is still willing to get back the vehicles without any payment of dues as indicated in the order dated 28.11.2018, which sufficiently indicates that he is not willing to pay the amount due to the Bank but simply want to posses the vehicles without any condition, which however cannot be allowed to prevail. 14. Considering all entirety of the matter, it can be held that the order dated 28.11.2018, passed by the learned trial Court is not sustainable in law as well as facts. In a case under Section 323/506 of the IPC, the Court is not supposed to adjudicate the matter of disposal of a vehicle which was taken on hypothecation. The prayer of the petitioner/borrower obviously is not bonafide in the present petition, who intended to resist the Bank from recovery of du ..... X X X X Extracts X X X X X X X X Extracts X X X X
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