Research › Browse › Judgment

Orissa High Court · body

1996 DIGILAW 371 (ORI)

AMRITLAL DAS PATTANAIK v. TATA ENGINEERING AND LOCOMOTIVE COMPANY LTD.

1996-12-13

P.C.NAIK, P.K.MOHANTY

body1996
P. C. NAIK, J. ( 1 ) THOUGH styled as one under Arts. 226 and 227 of the Constitution of India, this petition is, in fact, one under Art. 227 thereof. The orders impugned are annexures and 4 whereby the petitioner's application under S. 151 of the Civil P. C. for release of the bus in question was turned down by tic trial court as well as the revisional court. ( 2 ) SHORN of unnecessary details, the facts giving rise to this petition are that the petitioner had entered into a hire-purchase agreement in respect of a bus with its chasis (vehicle bearing registration number ORA 2322 ). The total contract amount was Rs. 4,16,930/- out of which a down payment of Rs. 33,549/- towards hire charges was made and the balance hire charges of Rs. 3,83,,381-was to be paid in thirty-five monthly installments, as provided in the hire-purchase agreement. It is not disputed that for nonfulfilment of the term regarding payment the vehicle was seized by the financer. There is however, a dispute between the panics regarding the amount due under the hire-purchase agreement. . In view of the seizure of the bus, the petitioner filed Title Suit No. 175 of 1995 in the court of the Civil Judge (Senior Division ). First Court, Cuttack, against opposite parties 1 and 2 for rendition of accounts. compensation and other incidental relief. Apprehending auction-sale of the vehicle by the financier. the plaintiff-petitioner filed an application under O. 39. Rr. 1 and 2. C. P. C. for restraining the defendants from transferring the seized. bus to any third person during the pendency of the suit and ad interim order has been passed though the final adjudication of that application is awaited. ( 3 ) SUBSEQUENT to the filing the application for interim injunction. the petitioner had filed an application under S. 151 of the Civil P. C. for directing the defendants (opposite parties 1 and 2 ) to release the bus in his favour. This application was opposed by the defendant on the ground that the plaintiff has no right to ply it without payment Of Rs. 1. 15. 166/. which is the amount due under the hire-purchase agreement as on 26-6-1995. On the other hand, the plaintiff is that for a paltry amount of Rs. 25. 380/- which is the only amount due, he has been deprived. 1. 15. 166/. which is the amount due under the hire-purchase agreement as on 26-6-1995. On the other hand, the plaintiff is that for a paltry amount of Rs. 25. 380/- which is the only amount due, he has been deprived. of using the bus in which huge amount was invested by him as what was supplied to him under the hirepurchase agreement was the chasis and engine only. ( 4 ) THE trial court afteer taking into consideration the dispute involved in the case and the fact that injunction proceeding are pending in which an ad interim order has already been passed restraining the defendants form transferring. the bus to any third person. came to the conclusion that this application was premature. It was also of the opinion that as to what in fact is the amount due under the hire-purchase agreement and whether all the installments had been paid or not, are yet to be adjudicated upon. It accordingly, was of the opinion that there was no substance in the application which was dismissed on 28-8l995 (vide Annexure 3 ). ( 5 ) AGGRIEVED with the aforesaid on order, the petitioner approached the District Judge. Cuttack, in Civil Revision No, 1 13 of l995 which has been dismissed on 24-4-1996 (vide Annexure 4 ). In his order, the- District Judge has also observed that it was not within the exercise of his revisional. jurisdiction to determine at that stage whether or not the seizure of the bus for non-payment of hire-purchase instalments was proper, more so in view of the fact that Clause 7 of the hire-purchase agreement reserved with the hirer a right to seize the vehicle for nor-payment of instalments. He was further of the opinion that as to whether ownership has in fact passed to the plaintiff (petitioner), is also yet to be decided. He, accordingly dismissed the revision as having no merit: The District Judge, however, observed that the Observations made were only for the purpose of the revision petition and will not bind the trial court either during hearing of the suit or while considering the pending application under O. . 39,rr. 1 and 2, CPC on merits. Accordingly, the plaintiff-petitioner has approached this Court for relief. ( 6 ) THE learned counsel for the petitioner has contended that for a paltry sum of Rs. 25. 380/the bus was seized. 39,rr. 1 and 2, CPC on merits. Accordingly, the plaintiff-petitioner has approached this Court for relief. ( 6 ) THE learned counsel for the petitioner has contended that for a paltry sum of Rs. 25. 380/the bus was seized. It is his case that what was financed was only the chasis and the engine and thereafter. the petitioner spent a huge amount of about Rs. 5. 00,000/- for building the body of the bus and as such, he is being put to a great loss by the unlawful act of the defendants (opp. parties 1 and 2 ). It is further submitted that while the bus was in use. it had met with five accidents and that the amount claimed from the 1nsurance Company has been retained by the financier. This amount according to the learned counsel. should also be adjusted towards the outstanding dues. He therefore, submits that the outstanding dues are only less than Rs. 25. 000/- and prays that the vehicle in question may be released the petitioner depositing a sum of Rs. 25. 380/-and furnishing an undertaking regarding the other terms. ( 7 ) THE petitioner is opposed by opposite parties 1 and 2. inter aria. on the ground that it is not maintainable as the opposite parties are neither "state'' nor " any other authority" within the meaning of Art. 12 of the Constitution of India However, in view of the fact that the petition is being treated as one under Art. 227 of the Constitution, this particular objection raised by opposite parties 1 and 2 need not detain us. ( 8 ) THE petition is also opposed on the ground that no good or sufficient ground has been made out by the petitioner for interfering with the revisional order of the District Judge in exercise of our jurisdiction under Art. ,227 of the Constitution of India, looking to the facts and circumstances involved in this case. It is submitted that the merits of the case cannot be gone into this petition and as to whether or not there has been a breach of the conditions of the hire-purchase agreement, as to whether or not the instalments had been paid and what is the amount due, are all factual aspects which are subject-matters of decision of the trial court in a suit filed by the petitioner. As a seizure is in exercise of powers under the hire-purchase agreement, it cannot be said to be illegal, unathorised and unwarranted. In reply, the learned counsel for the petitioner after taking us through the pleadings, submits that powers under Art. 227 are wide and this Court can in the instant case exercise those power; and grant relief to the petitioner. ( 9 ) IT cannot be denied that powers conferred on this Court under Art. 227 of the Constitution of India wide and are not subject to limitations as are prescribed, say, under S. 115 of the Civil P. C. It is in this view of the matter that it has been held in some cases that if a case is made out, this Court, in exercise of power under Art. 227, can also go into the questions of fact and may also look into the evidence if the ends of justice so require. However, it will not interfere with the findings of fact unless it were absolutely perverse or not based on any material, or if the conclusion arrived at by the Court subordinate is such that no reasonable person would possible return that finding, or in a case where there is manifest injustice. but, as laid down as far back as in 1953 in D. N. Banerji v. P. R. Mukherjee, (1953) SCR 302 : ( AIR 1953 SC 58 ), the powers under Art. 227, though are wide, would be restricted to interference in a case of grave dereliction of duty of flagrant violation of law and they should be exercised sparingly and in case where grave injustice would be done unless it interferes. It has further been laid down in Bhutnath Chatterjee v. State of West Bengal, 1969 (3) SCC 675 , and M/s. Rajkamal Kalamandir (Pvt) Ltd. v. Indian Motion Pictures Employees' Union. (1965) 2 SCWR 233, that these powers under Art. 227 should not be exercised by the High Court as if it was exercising appellate or revisional powers. There is also ample authority for the proposition that these powers are not to be exercised to correct error of fact or law, which is not apparent on the face of record, unless such error affects the jurisdiction or involves a breach of the principles of natural justice, nor can it, in exercise of powers under Art. 227, reappraise the evidence. Thus, though the powers are wide, they have to be exercised within the above mentioned limitations which have been laid down by the Courts as a self-imposed discipline, for the power is to be exercised to keep the subordinate courts or tribunals within the bounds of their authority. ( 10 ) HAVING heard counsel for the parties and considering the material on record, we do not find the present to be a case which calls for our interference in exercise of the powers under Art. 227 of the Constitution of India. Admittedly, there is a dispute between the parties regarding payment of instalments and amounts paid and due under the hire-purchase agreement and that this question is subjudice. It is also a fact that an application under O. 39, Rr. 1 and 2 CPC filed by the petitioner-plaintiff is yet to be adjudicated upon though an ad interim order has been passed restraining the defendants 1 and 2 (opp. parties 1 and 2) from transferring the bus in question to any third person pending hearing. Prima facie, the trial court as well as the revisional court has come to the conclusion that certain amount towards the instalments is due - according to the plaintiff, it is about Rs. 25,000/- whereas according to the defendants, it is Rs. 1,15,166/as on 26-6-1995. Upon a consideration of all these facts, the trial courts as well as the revisional court rejected the application. In our considered view, no ground exists for our interference in exercise of the powers under Art. 227 of the Constitution of India and the writ petition has, therefore, to be rejected. ( 11 ) IN the result, the writ application is dismissed. However, the observations made by us in this judgment are for the purpose of disposing of the writ application and shall not be construed to be our expression on merits of the case. As such, the Civil Suit and the injunction application filed by the plaintiff shall be disposed of by the court below on their own merits without in any way being influenced by any observation that may have been made by us in this proceeding. There shall be no order as to costs. ( 12 ) K. MOHANTI, J. , I agree. Petition dismissed.