Bhaskar Bhattacharya, J. - (1.) This mandamus-appeal is at the instance of the private-respondents in a writ-application and is directed against the order dated 20th June, 2003 passed by a learned Single Judge of this Court thereby allowing the writ-application by directing the Police Authority to recover a vehicle from the custody of the private-respondents after making an inventory of the same and to hand over the vehicle to the writ-petitioner who was previously in possession of the same by virtue of a hire-purchase agreement with the private- respondents. His Lordship further ordered that the writ-petitioner would run the vehicle under his exclusive control and would keep the same in a running condition until the entire payment is made to the HSBC Bank Limited, the private-respondent, under the agreement. His Lordship had, however, not decided the validity of hire-purchase agreement or the actual amount of outstanding dues payable by the writ-petitioner in this writ-petition and observed that the said order would not stand in the way of the HSBC Bank Limited from initiating appropriate legal proceedings against the writ-petitioner for recovery of outstanding dues and/or taking possession of the vehicle in question.
(2.) Being dissatisfied, the HSBC Bank Limited, represented by its officers has come up with the present mandamus-appeal.
(3.) The facts giving rise to the filing of the present writ-application may be summed up thus: (a) The writ-petitioner purchased a multi utility Tata Safari (4x2) LX Model in the month of September, 2001 through a hire-purchase agreement and at that material point of time, the price of the car was Rs. 7,95,218/- only. b) The HSBC Bank had financed the petitioner for the purpose of purchasing the car and according to the agreement between the parties, the writ-petitioner was required to make a down-payment of Rs.30,000.00 only and was under further obligation to pay a sum of Rs.16,702.00 a month for a period of five years as monthly instalment. c) The writ-petitioner admitted in the application that there was no dispute between the parties till the month of May, 2003 but there was an admitted default on the part of the writ-petitioner in making payment of monthly instalment for the month of May, 2003, as a result, on 7th June, 2003 while the writ-petitioner and his son were driving the car along the Southern Avenue, according to the writ- petitioner, the vehicle was forcibly stopped by the men and agents of the HSBC Bank and after stopping the vehicle, they manhandled the writ-petitioner and his son and took possession of the petitioner's vehicle and further compelled the petitioner to sign a form which was already filled up. According to the writ-petitioner, as stated in paragraph 7 of the application, at the time of signing the form, the writ-petitioner had noticed that the said form contained a declaration that the writ-petitioner had surrendered the vehicle. d) The writ-petitioner immediately lodged a diary with the local Police Station and thereafter visited the HSBC Bank and contacted with the respondent No. 6 who admitted that the vehicle had been seized by the Bank but refused to hand over the vehicle back to the writ- petitioner. According to the writ- petitioner, the next day, he further visited the Bank with a view that the higher officials of the Bank might sort out the problem amicably but they abused the petitioner and further threatened that the vehicle would not only be retained by them but the same would also be privately auctioned. e) The writ-petitioner and his son on 11th June, 2003 spotted the car at 7/1, Lake Terrace Road and immediately lodged a further diary with the local Police Station as the Bank Officials refused to return the car. According to the writ-petitioner, although, the Police Officers of the Lake Police Station accepted the diary but they did not take any action against the HSBC Bank or its officials for taking forceful possession of the car. (f) The writ-petitioner, thus, prayed for mandamus directing the Police Authority to take forthwith the step for recovery of the car from the Bank in terms of the complaint as well as the General Diary made by the writ-petitioner and to ensure that the Bank was restrained from making any further interference in any manner. (g) The aforesaid prayer was opposed by the Bank authority and according to such authority, there being admitted default on the part of the writ-petitioner, they were entitled to take possession of the car in terms of hire-purchase agreement itself, which authorised the Bank to take possession, in the event, there was default in payment of instalments. The Bank authority also disputed the maintainability of the writ-application itself.;