HDFC BANK LTD Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The submissions of the learned Counsel appearing for the parties were heard on the last date. The Petitioner-Bank by filing this Petition under Article 227 of the Constitution of India read with section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code of 1973") has challenged the order dated 14th March 2006 as well as order dated 28th December 2006 passed by the learned Judicial Magistrate, First Class, Pandharpur.

(2.) According to the case of the Petitioner, on an application made by the second Resopndent, the Petitioner had granted loan in favour of the second Respondent for purchasing a two wheeler bearing registration no.MH13-AA-0174. According to the case of the Petitioner, the second Respondent executed an agreement dated 16th August 2004 of loan-cum-hypothecation. A loan of Rs.36,400/- was advanced by the Petitioner to the second Respondent. Apart from the loan-cum-hypothecation agreement, according to the Petitioner, the first Respondent executed a demand promissory note as well as a power of attorney in favour of the Petitioner. According to the Petitioner, defaults were committed by the second Resopndent in repayment of the amount and hence, a legal notice was issued on 21st September 2005 to the second Resopndent. As there was no compliance by the second Resopndent, relying upon clause 8.2 of the agreement dated 16th August 2004, the Petitioner took over possession of the said vehicle which was hypothecated in its favour and the said vehicle was sold to a third party for consideration.

(3.) An application was moved by the second Respondent before the learned Magistrate purporting to be an application under section 94 of the Code of 1973. In the said application, it is alleged that the Petitioner took forcible possession of the two wheeler without the consent of the second Respondent on 15th February 2006. It was alleged that the Petitioner had stolen the vehicle and therefore, a complaint was lodged in Pandharpur Police Station and no action was taken by the Police. Therefore, a prayer was made in the application to issue search warrant against the Petitioner and for a direction to hand over possession of the vehicle to the second Resopndent. An order was passed on 14th March 2006 for issuing search warrant for production of vehicle. The Petitioner did not appear to contest the application inspite of service of notice. By a further order dated 28th December 2006, the learned Magistrate granted interim custody of the vehicle to the second respondent on executing a bond of Rs.50,000/-.