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Rajasthan High Court · body

2012 DIGILAW 848 (RAJ)

Kotak Mahindra Primus Ltd. v. Deepak Jain

2012-04-09

NISHA GUPTA

body2012
JUDGMENT 1. - This criminal misc. petitions under Section 482 Criminal Procedure Code have been filed against the order dated 15.10.2005 passed District & Sessions Judge, Jaipur in Criminal Revision Petition No. 19/2005 and 27/2005 whereby the order of the trial Court dated 6.8.2005 was set aside and the interim custody of the vehicle was given to respondent in Case No. 108/2005 arising out of F.I.R. No. 467/2004 registered at Police Station Vidhyakpuri District Jaipur. 2. The short facts of the case are that the petitioner is a non-banking finance company offering a wide range of financing facilities to its customers, such as hire purchase etc. In the year 2004, Smt. Usha Chhajer has availed finance facility from the petitioner-company and an agreement dated 26.4.2005 was entered into between the parties for the vehicle bearing registration No. RJ-14-8C- 6514. According to the terms of the agreement entered into between the parties, Smt. Usha Chhajer has agreed to pay the specified monthly installments for a period of 35 months. But after availing the finance facility, Smt. Usha Chhajer borrower started defaulting in the payment of the monthly installments and sold the hypothecated vehicle to respondent No. 1 contrary to the terms and conditions of the agreement and NOC has also been forged. The petitioner company filed F.I.R. No. 467/2004 under Sections 420, 467, 468, 471 and 120-B Indian Penal Code During course of investigation, police seized the said car bearing registration No. RJ-14- 8C-6514. The petitioner and respondent No. 1 both moved application under Section 457, Criminal Procedure Code before the trial Court. The trial Court dismissed the application. Thereafter both petitioner and respondent No. 1 moved revision petition before the learned Sessions Judge. The learned Sessions Judge ordered the interim custody to be given to respondent No. 1. Hence this petition. 3. The contention of the present petitioner is that the impugned order is self-contradictory as the learned Sessions Judge has handed over the interim custody of the vehicle to respondent No. 1, while the liberty has been given to the petitioner for taking possession of the vehicle as per the terms and conditions of the agreement. Admittedly, respondent No. 1 has taken the possession on the strength of forged NOC. He is not the best person entitled to get the possession. Admittedly, respondent No. 1 has taken the possession on the strength of forged NOC. He is not the best person entitled to get the possession. It was specifically agreed between the parties that if the borrower fails to pay the monthly installments within the prescribed limit, the right of borrower or any other person claiming right under him would forthwith shall be determined and the agreement would stand terminated and when Smt. Usha Chhajer has not deposited the installments in time, his right has been determined. The present petitioner has no locus standi to claim the possession of the vehicle. A single installment has not been paid by the respondent and hence the impugned order should be set aside. 4. None appeared for the respondent. 5. The learned counsel for the petitioner has placed reliance on the judgment delivered in the case of Bharath Mehta v. State by Inspector of Police Chennai, 2008 (2) SC 596 , wherein it has been held that if a vehicle is purchased in hire purchase from the financier, the financier is the owner till the full amount is paid. Though the vehicle is registered in the name of respondent as per the hire- purchase agreement but the actual owner is finance company. 6. The learned counsel for the petitioner has also relied on the judgment delivered in the case of M/s Damodar Vally Corporation v. State of Bihar, AIR 1961 SC 440 , wherein it has been held as under: "the contract of hire-purchase simplicitor confers no title on the hirer, but a mere option to purchase on fulfillment of certain conditions and the solemn agreement entered into by the parties, under which contracts and obligations are created cannot be brushed aside simply because Section 2 (30) of the Act widens the meaning of the word "owner" to include the person in possession of the vehicle, under hire-purchase agreement. In the instant case, the petitioner is the real owner, however, respondent No. 2 is, is the first valid registered owner of the vehicle. The respondent No. 2 obtained loan from the petitioner-company, under the hire- purchase agreement and, therefore, was under statutory obligation to repay the loan and, therefore, would only remain registered owner till such time, when respondent No. 2 shall exercise option to purchase vehicle, in question on fulfillment of required conditions under hire purchase agreement." 7. The respondent No. 2 obtained loan from the petitioner-company, under the hire- purchase agreement and, therefore, was under statutory obligation to repay the loan and, therefore, would only remain registered owner till such time, when respondent No. 2 shall exercise option to purchase vehicle, in question on fulfillment of required conditions under hire purchase agreement." 7. The learned counsel for the petitioner has further placed reliance upon the judgment delivered in the case of M/s B.C.L. Financial Services Ltd v. State of Maharashtara & Ors., 1999 Cri.L.J. 2305 wherein it has been held that the contention of the respondent that he is the bona fide purchaser of the vehicle was not found to be acceptable. 8. In the present case, respondent No. 1 is the only registered owner of the vehicle, in any case the actual owner of the vehicle is the present petitioner and it has been stated that not a single installment has been paid, this fact has not be contoverted by the respondent and it was also stated by the present petitioner that by a forged NOC, vehicle has been sold to the respondent. 9. Hence looking at the above, the impugned order dated 15.10.2005 of the revisional Court is liable to be quashed and the same is hereby quashed and interim custody of the vehicle be given to the petitioner-company on the terms and conditions which can be settled by the trial Court. 10. The misc. petition is, therefore, allowed as indicated above.Petition allowed. *******