Judgment:
Prasenjit Mandal, J.
1. This application under Section 482 of the Code of Criminal Procedure, 1973 is at the instance of a constituted attorney of M/s. Shriram Transport Finance Company Limited and is directed against the order dated 19.03.2009 passed by the learned Additional Chief Judicial Magistrate, Barrackpore, District - North 24 Parganas in G.R. Case No. 236 of 2007.
2. The short fact of the case is that the petitioner has been appointed custodian of the two vehicles by the Hon'ble Arbitral Tribunal in March, 2007. The petitioner purchased two vehicles and agreements were held between the petitioner on the one side and the opposite party No. 2 & 3 on the other side in September, 2006 for letting out the said two vehicles on the basis of loan cum hypothecation on terms and conditions as contained in the agreements dated September 14, 2006 between them. The opposite party No. 1 is the loanee and the opposite party No. 2 is the guarantor of the transactions. There was an arbitration clause for settlement of disputes and differences that might arise out of the said loan cum hypothecation agreement. Ultimately, the opposite party Nos. 2 & 3 failed to make payments of the monthly instalments and the amount payable by the opposite party Nos. 2 & 3 was to the tune of Rs. 19,32,287.72 paise and Rs. 14,72,049.00 paise respectively.
3. The petitioner sought relief as per arbitration clause and one Sri Aryak Dutta, advocate was appointed as sole arbitrator in respect of both the agreements. Ultimately, the learned Arbitral Tribunal appointed the petitioner as custodian of the said two vehicles.
Thereafter, the opposite party No. 2 instituted a suit before the learned City Civil Court at Calcutta being Title Suit No. 256 of 2007 and he filed an application for temporary injunction. The petitioner also filed an application under Section 8 of the Arbitration and Conciliation Act, 1996.
4. The petitioner made an endeavour to take possession of the said two vehicles and he came to know that the two vehicles were seized in connection with Baranagar P.S. Case No. 22 dated 29.01.2007 under Sections 419/420/406/397/511/506/120(3) of the I.P.C. corresponding to G.R. case No. 236 of 2007 pending before the learned Additional Chief Judicial Magistrate, Barrackpore.
5. The petitioner immediately filed an application for taking possession of the vehicles before the learned Additional Chief Judicial Magistrate, in terms of the order passed by the learned Arbitral Tribunal. But his prayer was rejected holding that the petitioner is not the owner of the said two vehicles.
6. Being aggrieved, the petitioner filed an application under Section 482 of the Cr.P.C., 1973 being C.R.R. No. 2311 of 2007. Hon'ble Justice S.P. Talukdar disposed of the said criminal revision directing the petitioner to approach the learned Arbitrator to decide the fate of the said two vehicles in accordance with law.
7. Thereafter the petitioner filed an application under Section 17 of the Arbitration and Conciliation Act, 1996 and then the learned Arbitrator was pleased to pass an order specifically directing the O.C., Baranagar P.S. to hand over the said two vehicles in question to the petitioner on April 28, 2008. That order of the learned Arbitral Tribunal was communicated to the O.C., Baranagar Police Station but the O.C. Baranagar P.S. refused to hand over the possession of the said two vehicles.
8. Finding no other way, the petitioner again moved an application before the learned Additional Chief Judicial Magistrate, Barrackpore for return of those two vehicles. That application was heard and finally disposed of by the impugned order dated 19.03.2009. By the impugned order, the learned Magistrate directed the parties to pray before the learned Arbitrator for the purpose of returning of the said two vehicles.
9. Having considered the submission of the learned Advocate of both the sides and on perusal of the materials on record, I find that the learned Arbitrator has passed in clear terms that the petitioner is entitled to take possession of the vehicles as the opposite party Nos. 2 & 3 failed to make payments as per terms of the agreement. Therefore, the matter finally ends there. There is no evidence that the opposite party Nos. 2 & 3 moved the higher forum against the order of the learned Arbitral Tribunal. Therefore, the learned Magistrate could have proceeded with the matter and could have disposed of the application by giving the vehicles in the possession of the petitioner upon a bond. But the learned Magistrate did not do so. This being the position, I am of the view that the application bears merits and it should be allowed. Accordingly, the application succeeds.
10. The impugned order dated 19.03.2009 passed by the learned Additional Chief Judicial Magistrate, Barrackpore, District North 24 Parganas in G.R. Case No. 236 of 2007 is hereby set aside. The application of the petitioner for return of the two vehicles stands allowed. The learned Additional Chief Judicial Magistrate, Barrackpore is directed to release the two vehicles as mentioned in the application, in favour of the petitioner upon a bond, the terms and conditions of which shall be determined by the learned Additional Chief Judicial Magistrate, Barrackpore, District - North 24 Parganas. He shall pass appropriate orders within seven days from the date of communication of this order.
11. Considering the circumstances, there will be no order as to costs.
12. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.