C.O. No. 2497 of 2008. Case: Contai Co-operative Bank Ltd. Vs Uday Chandra Dey. High Court of Calcutta (India)
| Case Number | C.O. No. 2497 of 2008 |
| Counsel | For Appellant: S.R. Bhuian and Ashim Roy, Advs. And For Respondents: H.N. Mukherjee, A.K. Paul and M.P. Samanta, Advs. |
| Judges | Partha Sakha Datta, J. |
| Issue | West Bengal Co-operative Societies Act, 1983 - Sections 49, 95, 95(1), 95(2), 134 and 134(2); Specific Relief Act - Section 38; Civil Procedure Code (CPC) - Section 9 - Order 7, Rule 11; West Bengal Co-operative Societies Act - Sections 86 and 132 |
| Citation | (2008) 4 CalLT 353 (HC) |
| Judgement Date | September 02, 2008 |
| Court | High Court of Calcutta (India) |
Judgment:
Partha Sakha Datta, J.
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The order dated 25th June, 2008 passed by the learned Civil Judge, Junior Division, 2nd Court, Sealdah in Title Suit No. 287/06 is under challenge at the instance of the defendant.
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The plaintiff-opposite party instituted the suit against the petitioner namely Contai Co-operative Bank-Ltd. for a permanent injunction to restrain the petitioner and its men and agents from effecting seizure of the vehicle without lawful recourse. The Contai Co-operative Bank Ltd., the petitioner herein financed a sum of Rs. 80,600/- in favour of the opposite party for the purpose of procuring a vehicle being No. WB-O4C 536 which is now being run in route No. 215 from Laketown to Howrah. According to the plaintiff-opposite party, a loan-cum-hypothecation agreement/hire purchase agreement was executed between the plaintiff-opposite party and the bank in July 2004 and pursuant to that agreement the bank released and disbursed the amount for the purpose of purchase of the vehicle but for want of permit the vehicle could not be plid on the road because of an interim order of injunction issued by the High Court in connection with same other matter and the High Court's order was modified in September 2005 whereafter permit could be obtained by the plaintiff-opposite party. However, the opposite party started depositing equated monthly instalment with the bank and paid as on the date of institution of the suit for a sum of Rs. 1.44 lakh. Due to non-plying of the vehicle the plaintiff failed to clear the EMI for few months. Allegedly, the defendant-bank sent their musclemen to seize the vehicle which according to the plaintiff-opposite party was not legally permissible. Since the financier without taking help of law is accosted to seize the vehicle the plaintiff apprehended that the men and agents of the defendant will repossess the vehicle. Hence the suit.
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After the institution of the suit the defendant-bank filed the petition before the learned Trial Court under Order 7 Rule 11(d) read with Section 9 of the CPC praying for rejection of the plaint on the ground that the suit for permanent injunction to restrain a financier from taking repossession of the vehicle in terms of the agreement subsisting between the borrower and the lender is barred by law, and that in view of provision in Section 134(2)(d) of the West Bengal Co-operative Societies Act, 1983 the Civil Court loses its jurisdiction to entertain such suit and the only remedy available to the borrower is to take recourse to Section 95 of the West Bengal Co-operative Societies Act, 1983.
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The learned trial Court rejected the petition upon hearing the learned Counsels for both the parties on the ground that there is no statement in the plaint which is barred by law.
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Mr. Bhunia raised two-fold submissions. The first is that where admittedly in the plaint the bank financed the plaintiff-opposite party a certain sum of money namely 8,33,000/- for the purpose of procuring a vehicle for the plaintiff on condition of repayment of the amount with interest with regular monthly instalment in terms of the agreement between the bank and the borrower and where the agreement stipulates that in case the amount of loan is not paid by monthly instalments with interest it shall be lawful for the bank and its officers to call upon the plaintiff to deliver possession of the hypothecated vehicle and it shall be also lawful for the bank and its officers to take possession of the vehicle and sell the same without the intervention of the Court for adjustment of the loan amount it is not permissible for the court to entertain a...
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