Chandra Brothers v. State Of Bihar — 1979 DIGILAW 201 (PAT)

Judgment P. S. Sahay, J. 1. This application is directed against the order of the learned Sessions Judge dated 4-4-1979 by which he was directed the release of vehicle BHP - 5566 in favour of Opp. party No.2 on furnishing bond. 2. In order to appreciate the point raised in this application, it is necessary to state some facts. The petitioner-Company is a financier of kanpur and a hire-purchase agreement was entered into between the petitioner company on one hand and opposite party No.2 on the other regarding a Mini Bus bhp - 5566. A copy of the aforesaid agreement has been filed alongwith this application and marked Annexure 1. The opposite party No.2 had to pay instalments and under clause V of the aforesaid agreement, if there was a default, the petitioner Company as financier was entitled to take possession of the Vehicle. There was a default in payment of the instalments for which an application under Sec.20 of the Indian arbitration Act was filed before the Subordinate Judge No.11, Patna which gave rise to Title Suit No.103 of 1978. In the aforesaid suit the learned Subordinate Judge by his order dated 10-8-1978 held that the patna Court had no territorial jurisdiction to try the suit and the application was, therefore, ordered to be returned. It is stated in the petition that on 27-5-1978 one of the guarantors under the agreement (Annexure 1)Shri Baijnath Singh made over possession of the aforesaid vehicle to the petitioner-Company and it was kept in the custody of Ram Sanhai Singh of Nalanda Coach Body Builders, Ranchi Road, Bihar Sharif. An information to this effect was also filed before the Bihar Sharif police. Thereafter at the instance of oppsite party No.2 the vehicle was seized by the police on 30-5-1978 and was taken away from the custody of Ram Sanhai Singh. According to the case of opposite party No.2, the vehicle was taken away forcibly by the employees of the petitioner Company for which information was given to the Patna Police on 26-4-1978, vide Annexure-A of the application filed on behalf of opposite party No.2 on 10-5-1979 for vacating the ad interim order of stay passed by this Court on 12-4-1979. According to the case of opposite party No.2, the vehicle was taken away forcibly by the employees of the petitioner Company for which information was given to the Patna Police on 26-4-1978, vide Annexure-A of the application filed on behalf of opposite party No.2 on 10-5-1979 for vacating the ad interim order of stay passed by this Court on 12-4-1979. Applications were filed before the chief Judicial Magistrate, Bihar Sharif on behalf of opposite party No.2 for the release of the vehicle, one on 31-7-1978 and another on 19-8-1978 because the vehicle was kept under the jurisdiction of the aforesaid Magistrate. A similar application was also filed on behalf of petitioner on 24-8-1978 for the release of the vehicle. The learned Chief Judicial Magistrate by his order dated 7-9-1978 ordered the Mini Bus in question to be released in favour of the petitioner Company on furnishing a bond of Rs 75,000/- with two sureties of the like amount. A bond was duly executed by petitioner no.2 Ashfaq Ahmad on behalf of the petitioner Company on 8-9-1978 and the possession of the vehicle was accordingly taken on behalf of the petitioner Company and thereafter taken to Kanpur. The opposite party no.2 filed a criminal revision before the Sessions Judge, Nalanda at Bihar Sharif which gave rise to Criminal revison no.183 of 1978. The learned Sessions Judge by his order dated 4-4-1979 allowed the application and set aside the order of the learned chief Judicial Magistrate dated 7-9-1978 and directed that the vehicle in question be released in favour of opposite party no.2 on furnishing a bond of Rs.75,000/-. Being aggrieved by the aforesaid order, the petitioner company alongwith one of its employees has moved this Court and the impugned order was stayed. Later an application was filed on behalf of opposite party no.2 for vacating the order of stay in which it has been stated that the vehicle was always in his possession and it was the financier the petitioner Company, who took forcible possession of the same for which informations were lodged before the police. It has also been stated that the Chief Judicial Magistrate passed the order without hearing opposite party no.2, who was a necessary party and that also on a date which was not fixed in the case. 3. It has also been stated that the Chief Judicial Magistrate passed the order without hearing opposite party no.2, who was a necessary party and that also on a date which was not fixed in the case. 3. Learned Advocate General appearing on behalf of the petitioner company has contended that the police had never seized the vehicle and the petitioner Company got possession of the same through one of the guarantors under the terms and conditions of the agreement and, therefore, the learned Chief Judicial Magistrate was perfectly justified in releasing the vehicle in favour of the petitioner Company and the learned Sessions judge has acted illegally in setting aside the aforesaid order. 4. From the order sheet of the learned Magistrate, vide Annexure-G filed on behalf of opposite party no.2, it is clear that the order was passed by him on 7-9-1978 which was not a date fixed in the case and also without hearing the opposite party no.2. This was a contested matter and the learned Magistrate should not have passed an ex parte order, because it is well settled by series of decisions of the Supreme Court that such order will be against the principles of natural justice. The learned Sessions Judge has reversed the order of the learned Magistrate mainly on the ground that the vehicle was registered in the name of opposite party no.2 and he had also the permit for plying the same by the Rajya Transport Corporation. In this connection, he relied on two decisions of our own High Court, one in the case of Sardar Singh Kohli V/s. M/s. Swastik Financial Corporation (P.) Ltd , New Delhi and others [ 1964 (2) Crlj 492 ]. In which it was held that a holder of a registration certificate and road permit in respect of motor vehicle, of which custody is claimed, shall be presumed to be in possession thereof. Similar observation has also been made by the learned judge of this Court in Ram Kripal Singh Yadav V/s. Ganga Prasad Yadav (1973 BLJR 400 ). It is, however, relevant to mention that in both the cases, criminal cases had been instituted relating to the vehicle, but in the instant case, though informations were lodged before the police regarding the taking away of the vehicle forcibly, but no case has been registered up till now. It is, however, relevant to mention that in both the cases, criminal cases had been instituted relating to the vehicle, but in the instant case, though informations were lodged before the police regarding the taking away of the vehicle forcibly, but no case has been registered up till now. Learned Advocate General has drawn my attention to a recent decision of the Supreme court in Trilok Singh and others V/s. Satyadeo Tripathi (AIR 1979 Supreme Court, 850 ). In that case there was an agreement under the hire-purchase scheme and there was a default and the financier seized the vehicle under the terms and conditions of the agreement as in the instant case. Criminal prosecutions were launched and ultimately the matter came to the Supreme Court for quashing. It was held that even assuming that the appellants (meaning thereby the financiers) either by themselves or in the company of some others went and seized the truck on 30-7-1973 from the house of the respondent, they could and did claim to have done so in exercise of their bonafide right of seizing the truck on the respondents failure to pay the third monthly instalment in time. It was, therefore, a bona fide civil dispute which led to the seizure of the truck. In the instant case also there was a dispute and the matter was agitated before the Civil Court by opposite party no.2. According to the petitioners, the possession of the vehicle was taken on 27-5-1978, when one of the guarantors himself gave possession of the vehicle ; whereas according to opposite party no.2, it was forcibly taken for which informations were lodged, vide annexures A, B, C, and D filed on behalf of opposite party no.2. I may also mention one important fact that in the petition dated 31-7-1978 filed by opposite party no.2 before the Chief judicial Magistrate for the release of the vehicle, it was stated that the vehicle was illegally taken away by force at Rajgir when some persons had gone to take both, but in the petition dated 19-8-1978 it was stated that the said vehicle was stolen from Gandhi Maidan sometime in May, 1978. Learned counsel appearing on behalf of opposite party no.2 stated that it was mistake on the part of the lawyer, who had drafted the petition and who was not properly instructed. It is difficult to accept such contention. Learned counsel appearing on behalf of opposite party no.2 stated that it was mistake on the part of the lawyer, who had drafted the petition and who was not properly instructed. It is difficult to accept such contention. Be that as it may, there was a dispute regarding the payment of instalments between the financier and opposite party no.2. According to opposite party no.2, the police had seized the vehicle, but as I have said earlier that till today no criminal case has been registered and in that view of the matter, in my opinion, that seizure was wholly illegal and unjustified. Even if the vehicle was seized by the financiers though it has been stated on their behalf that it was handed over by one of the guarantors, such seizure cannot be said to be illegal and unjustified, in view of the aforesaid decision of the Supreme Court. In the decisions of our own High Court, which have been relied upon by the learned Sessions Judge, criminal cases were registered which is not the position in this case and, therefore, simply because the vehicle is registered in the name of a party and he has the right to ply, he is not entitled to get back the possession of the vehicle, if it has been seized by a financier in the case of default. Such cases have become rather common these days and in most of the cases there are always defaults. The financier in such cases, under the terms and conditions of the agreement has the right to seize the vehicle otherwise such clause in the agreement will be meaningless and to great disadvantage to the financier, who invests heavy amount and later are duped by the hirers. After paying a small sum of money, they become the owners of the vehicles and ply the same and earn money. Even if they do not pay the instalments, they ply the vehicle without raising any dispute and taking recourse to the clause of the agreement that gives right to the parties to refer the matter to the arbitrator. In such situation, under the terms and conditions of the agreement. the financier can always seize the vehicle. seize" according to Chambers Twentieth century Dictionary, means "to take by force, to take possession of, to apprehend". In such situation, under the terms and conditions of the agreement. the financier can always seize the vehicle. seize" according to Chambers Twentieth century Dictionary, means "to take by force, to take possession of, to apprehend". The act of seizure will always be an unpleasant act and will be resisted by the person, who runs the vehicle. Some force may also be necessary in this regard. Such actions on the part of the financier will be completely covered by the terms and conditions of the agreement and cannot be said to be a criminal act. Opposite party no.2, entered into the agreement and cannot be allowed to challenge the seizure by the financier after a default has been committed by him. Release of vehicles in favour of such persons will anount to putting premium on their fraud. They will run the vehicle merrily and the financier will be forced to go for arbitration or to court of law. In the meantime, the defaulter will get all the advantages, to the vehicle being in his possession. It is the duty of a Court to protect the interest of such aggrieved persons and in this case, from the facts, it is absolutely clear that payments were not made to the financier and the petitioner Company was really the aggrieved party. No doubt, the learned Chief Judicial Magistrate without hearing opposite party no.2 as I have stated earlier, had passed the order in favour of the petitioner Company, but now opposite party no.2 cannot have any grievance, having his full say in the matter before the learned Sessions judge and also in this Court. Thus, on a careful consideration of the materials on the record and after hearing learned counsel for the parties, i am of opinion, that the order passed by the learned Magistrate is correct though for reason different as have been indicated above. It has also to be borne in mind that the vehicle has been released on the execution of bond and has been taken to Kanpur and it will not be advisable to disturb that position after a lapse of about one year. Opposite party no.2 has other remedies open and he can agitate the matter before any competent court, but he cannot get any relief from a criminal court. 5. Opposite party no.2 has other remedies open and he can agitate the matter before any competent court, but he cannot get any relief from a criminal court. 5. I, therefore, set aside the order of the learned Sessions Judge dated 4-4-1979 and restore the order of the learned Chief Judicial magistrate dated 7-9-1978, who has released the vehicle in favour of the petitioner Company. The application is accordingly allowed. Application allowed.