SABYA SACHI DUTTA Vs. STATE OF ASSAM AND 2 ORS
LAWS(GAU)-2018-6-103
HIGH COURT OF GAUHATI
Decided on June 18,2018

Sabya Sachi Dutta Appellant
VERSUS
State Of Assam And 2 Ors Respondents

JUDGEMENT

Ajit Borthakur, J. - (1.) Heard Mr. G. Saikia, learned counsel for the petitioner and Mr. T. N. Mishra, learned Addl. Public Prosecutor, Assam.
(2.) By this petition under Section 482 Cr.P.C., the petitioner has prayed for setting aside and quashing of the FIR, dated 14.07.2016, lodged by the respondent No. 2, whereupon Silchar P.S. Case No. 1867/2016 under Section 420/34 IPC has been registered against him.
(3.) The petitioner's case, in a nutshell, is that he is working as the Area Legal Manager of TATA-MOTOR Finance Ltd.-a company. On 06.11.2012, the respondent No. 2 purchased a commercial LPT3118 Truck Vehicle availing a loan of Rs.18,43,000/- only from the said company, wherein the respondent No. 3 stood as guarantor. The respondent No. 2 paid an amount of Rs.5,20,769/- only as margin money. The mode of repayment was entered in Loan-cum-Hypothecation-cum-Guarantee Agreement, dated 06.11.2012. As per the said agreement, the respondent No. 2 undertook to repay the loan amount together with interest and charges, in 45 monthly instalments. The said agreement was supported by an irrevocable General Power of Attorney in favour of the company empowering it to take back the vehicle and sell the same by public auction or private treaty and adjust the net sale proceeds towards the outstanding amount payable under the loan. If the respondent No. 2 defaulted in paying the amount due as per the payment schedule. However, the respondent Nos. 2 & 3 defaulted in paying the monthly instalments, warranting the company to send legal notice, on 21.10.2014, demanding payment of an outstanding amount of Rs.15,86,349.17/-, as on 20.10.2014 but did not respond. However, on 09.12.2014, the respondent No. 2 issued a cheque amounting to Rs.4,68,386/-, but on presentation, Assam Gramin Bikash Bank, Cheragi Bazaar Branch, returned the same dishonoured with remark of insufficient fund. Therefore, as per Clause 23 of the said agreement, dated 06.11.2012, the dispute was referred to a sole arbitrator and the sole arbitrator passed an order in Arbitration Proceeding No. TMFL/144/2014 as herein below extracted: "(a) The respondent No. 1 as a borrower and respondent No. 2 as a guarantor shall jointly and severally, pay to the claimants a sum of Rs.15,86,349.17/- together with further interest thereon at the rate of 18% per annum from 21st October, 2014 till payment and/ or realization; (b) It is declared that the amount mentioned in clause (a) above is secured by a valid and subsisting Hypothecation of vehicle being TATA LPT3118TC bearing registration No.AS01EC2949, Engine No. B 591803121E63257479 and Chasis No. MAT466379C2E10185 in favour of claimants and the Claimants are entitled to enforce and realize the amounts due and payable by the respondents by recovering/ taking possession/repossession of the said vehicle and sell the same by public auction or private treaty and appropriate the net sale proceeds thereof towards the outstanding amounts due and payable by the respondents; and (c) The respondents shall pay a sum of Rs.5000/- towards cost of arbitration and Arbitrator's fees".;


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