M/S ICICI Bank Limited vs Vikash

Prathiba M. Singh, J

CM APPL. 7314/2020 (exemption)

Allowed, subject to all just exceptions. Application is disposed of.

CM (M) 225/2020

This petition challenges the impugned order dated 4th June, 2019 in view of the fact that the application under Order XXXIX Rule 6 CPC, which

was filed by M/s. ICICI Bank Ltd. (hereinafter, “Bankâ€​), has not been decided by the Trial Court, despite the suit itself having been decreed.

The background is that the Bank had filed a suit for recovery of Rs.3,06,943.67/- against the Respondent/Defendant (hereinafter, “Defendantâ€)

in which initially an application for appointment of Receiver was filed. The case of the Bank is that the Defendant had availed of a vehicle loan of

Rs.4,05,000/- in respect of a car i.e., XCENT/BASE CRDI, registered in Haryana, which was disbursed to the Defendant under the loan cum

hypothecation scheme of the Bank.

The Defendant had agreed to repay the loan amount, along with interest @10.75%, in 36 equal instalments of Rs.13,212/-

each. The entire amount had been disbursed to the Defendant. The Trial Court had, vide order dated 22nd February, 2018 appointed a Receiver for

taking possession of the car. In the said order, the Trial Court appointed one of the Bank officials as the Receiver and directed the seizure of the

vehicle.

Since then, the vehicle has been lying in the control of the Bank. Immediately after taking possession of the vehicle, the Bank moved an application

under Order XXXIX Rule 6 CPC. Notice was issued in the application. The prayer in the said application reads as under:

“a) Direct the plaintiff to sell the said vehicle namely ""XCENT/ BASE CRDI"" BEARING REGISTRATION NO. HR-38V-6041"" and direct

the plaintiff to adjust the sale proceeds towards the outstanding amount due and payable by the defendant to the plaintiff; and

b) Pass such other/further order (s) as this Hon'ble Court may deem fit and proper in the interest of justice.â€​

This application continues to remain pending even though the suit itself has now come to be decreed on 4th June, 2019. The Trial Court has passed

a decree for a sum of Rs.2,91,546.10/- with interest. The operative portion of the said order reads as under:

“21. Accordingly, the suit of the plaintiff is decreed in favour of the plaintiff and against the defendant for an amount of Rs.2,91,546.10

paise (Rupees Two Lakh Ninety One Thousand Five Hundred Forty Six and Paise Ten only) alongwith pendente lite and future interest @

6% per annum from the date of institution of the suit till realization.â€​

The grievance of the Bank is that despite the application under Order XXXIX Rule 6 CPC having been filed, even in the final decree permission

has not been given to the Bank for selling the vehicle.

It is submitted by Mr. Bhalla, ld. counsel for the Bank, that the Bank is incurring parking charges for keeping the vehicle. It is further submitted that

the suit itself having been decreed, no useful purpose would be served by not selling the vehicle. Ld. counsel also submits that despite orders having

been passed in M/s ICICI Bank Ltd. v. Naveen Kalkal [CM(M) 1821/2019, decided on 23rd December, 2019] and M/s. ICICI Bank Limited v. Nidhi

Sharma [CM (M) 1814/2019, decided on 23rd December, 2019], which rely upon ICICI Bank Ltd. v. Kamal Kumar Garewal [FAO 49/2015, decided

on 29th May, 2015], and the same having been placed before the Trial Court, the same were not considered by the Trial Court and the application

seeking permission for sale of the vehicle has simply been adjourned.

After hearing ld. counsel for the Bank, there is no doubt that the application under Order XXXIX Rule 6 CPC ought to have been decided by the

Trial Court at the time of the final order in the suit itself. To keep the application pending, while the suit itself has been decreed, is completely

irrational. The car has a limited life value which deteriorates with each passing day. The Bank ought to be permitted to sell the car to recover

whatever amount it can to satisfy the decree.

Furthermore, the manner in which the application for Receiver is being treated by the Trial Court is completely unsatisfactory. Repeated orders

have been passed by this Court in several matters including, Kamal Kumar Garewal (supra) and Naveen Kalkal (supra). Ideally, when the Trial Court

is satisfied that the case for appointment of a Receiver has been made out and the Bank has taken control of the car for repayment, when the Bank

approaches the Trial Court for permission to sell the vehicle, the same should be directed to be considered expeditiously, as observed in Naveen

Kalkal (supra).

Despite the above two judgments, trials courts are not considering the applications for appointment of receivers and for auction of the vehicles,

diligently. The said applications are either being adjourned from time to time and in some matters, such as this one, the applications continue to remain

pending even though decrees have been passed, thus rendering the applications completely infructuous. In view thereof, in M/s ICICI Bank Ltd.Â

v. Deepanshu Bansal & Anr. [CM(M) 18/2020, decided on 1th3 January, 2020] and in M/s ICICI Bank Ltd. v. Priya Baveja

[CM(M) 16/2020, decided on 13th January, 2020] this Court had directed that whenever the application for appointment of Receiver or for permission

for sale are moved, the Trial Court shall consider the same expeditiously & dispose of the same within 60 days.

Under these circumstances, the impugned order is modified to the extent that the application under Order XXXIX Rule 6 CPC has not been dealt

with by the Trial Court. The Bank is permitted to sell the vehicle through a proper public auction with notice to the Defendant. Notice be served

through speed post at the last known address of the Defendant as also the location from where the vehicle was taken into possession. The Defendant

is also permitted to participate in the auction, as per paragraph 14 of Kamal Kumar Grewal (supra). Once the auction has taken place, report shall be

placed by the Bank before the Trial Court so that if the Defendant wishes to obtain any information, the same would be available to the Defendant.

The petition is disposed of in the above terms. All pending applications are also disposed of.