- (1.) The petitioner in this WP under art.226 dated December 02, 2011 is seeking the following principal relief: "a) A writ in the nature of Mandamus commanding the respondent Nos. 3 and 4 to cancel, rescind, withdraw and/or set aside the loan cum hypothecation agreement being No. 5000491742 and the impugned seizure list (Annexure P/2 to this writ petition) forthwith;" Mr Samanta appearing for the petitioner has argued as follows. In violation of the law declared by the Supreme Court and several decisions of this Court the finance company has forcibly repossessed the petitioner's vehicle in exercise of a right conferred by an agreement copy whereof was never supplied to the petitioner. Since the vehicle has been forcibly repossessed and a Reserve Bank of India circular was violated by not supplying a copy of the agreement, seeking relief the petitioner is entitled to approach the High Court under art.226. He has relied on the decision in ICICI Bank Ltd. v. Prakash Kaur & Ors., 2007 2 SCC 711 and the decisions dated October 25, 2011 of a Single Bench of this Court in AST No. 1682 of 2011 and November 14, 2011 of the Supreme Court in Civil Appeal No. 9711 of 2011 (Citicorp. Maruti Finance Ltd. v. S. Vijayalaxmi). Counsel for the finance company has submitted as follows. It is incorrect that copy of the agreement, whereunder the petitioner repaid a part of the loan, was not supplied to the petitioner. The inventory of items in the vehicle dated October 20, 2011 prepared at the time of repossession and produced by the petitioner with her WP will clearly show that the vehicle was repossessed through a peaceable process. The allegation of forcible repossession made for the first time in a lawyer's notice dated November 26, 2011 is an afterthought.
(2.) The question is whether power under art.226 is to be exercised for deciding: (i)whether the finance company ever supplied a copy of the agreement to the petitioner; and (ii)whether the finance company has repossessed the vehicle forcibly. I am unable to accept the argument that once the petitioner has alleged that copy of the agreement was not supplied to her and further that the vehicle was repossessed forcibly, the WP has to be admitted and the finance company has to be called upon to state its case by filing opposition. There is bound to be disputed questions of fact in every WP filed under art.226. But it is not the law that every WP under art.226 has to be admitted of course and the respondents therein have to be called upon to raise the disputes by filing opposition to the WP.
(3.) In such a case as the present one, in my opinion, a WP under art.226 should not be entertained at all. Here the principal question is whether the finance company has repossessed the vehicle forcibly, and there is no reason to say that the case the finance company is stating at this admission stage, it will not state in its opposition. The question, it is evident, cannot be decided without taking down evidence.;