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2014 DIGILAW 1527 (MAD)

Abdul Hussain v. Indusind Bank

2014-06-18

T.S.SIVAGNANAM

body2014
Judgment : 1. This revision is directed against the order of the Judicial Magistrate, Ambattur, dated 10.10.2006. 2. The petitioner filed an application before the Court below under Sections 451 & 457 Cr.P.C., for return/release of black colour Santro car bearing registration No.TN.02U-4775 to the petitioner. It was submitted by the petitioner that on 14.09.2006 at about 3.45p.m., when he was returning from his relatives house in the said vehicle, some unknown persons waylaid him near Dr.Cherian Hospital, Ambattur Estate Road, and asked the petitioner and his relative to get down from the car and drove away with the car along with the sum of Rs.35,000/-and certain other documents. It is stated that the petitioner lodged a complaint with the Police that the vehicle is missing and the vehicle traced by the Police was in the custody of the finance company. Therefore, the petitioner sought for release/return of the vehicle. 3. The learned Judicial Magistrate by order dated 10.10.2006, directed release of the vehicle to the petitioner subject to certain conditions. At that stage of the matter, M/s.Indusind Bank, who is the first respondent herein filed an application before the Court below stating that the petitioner herein purchased the Santro Car by entering into hire purchase agreement with them on 06.06.2005 and as per the terms of the agreement, the petitioner has to pay a sum of Rs.9,205/- every month for 48 months and the petitioner became a chronic defaulter and an amount of Rs.3,70,662/-was due and payable and the car was repossessed on 14.09.2006, and the petitioner lodged a false complaint, as if the car was forcibly taken. Since a case was registered based on the false complaint given by the petitioner, as per the direction of the Police, the car was surrendered to the first respondent Police and that the original R.C., book was with the respondent company and they sought for custody of the vehicle, as they are full owner and they were not made party to the petition filed by the petitioner for return of vehicle which was disposed on 10.10.2006. 4. This petition was resisted by the petitioner herein by filing his objections and thereafter, the Court heard the matter and passed an order taking into consideration the earlier order obtained by the petitioner herein in his application by order dated 10.10.2006. 4. This petition was resisted by the petitioner herein by filing his objections and thereafter, the Court heard the matter and passed an order taking into consideration the earlier order obtained by the petitioner herein in his application by order dated 10.10.2006. The Court after discussing about the facts and the default committed by the petitioner observed that though the petitioner has obtained an earlier order, on considering the fact that the original registration certificate of the car was held by the first respondent finance company and they are the ostensible owner of the car, directed the release of the car, subject to the first respondent herein producing original registration certificate, executing bond with two sureties for a like sum of Rs.3,00,000/-, and for further direction not to alter or change the colour of the vehicle and to produce the same as and when required by the Court. 5. The learned counsel for the petitioner would submit that a second order could not have been passed by the learned Magistrate and as per the earlier order, the petitioner is entitled to the vehicle. In support of his contention, the learned counsel for the petitioner placed reliance on the decision of this Court in the cases of Sunitha Mehata vs. State Sub-Inspector of Police, reported in; Mr.Kamal Bothra vs. State., By Inspector of Police, reported in; M/s.Sampathraj Jain Finance vs. State., Rep., by Inspector of Police, reported in; and Smt. Sooraj Devi Vs. Pyare Lal & Anr., reported in. 6. In reply, the learned counsel for the first respondent submitted that as held by the Hon'ble Supreme Court in the case of Anup Sarmah vs. Bhola Nath Sharma & Ors., reported in (2013) 1 SCC 400 , in an agreement of hire purchase, the purchaser remains a trustee/bailee on behalf of the financier/ financial institution and ownership remains with the latter. 7. Heard Mr.T.Muruganantham, learned counsel appearing for the petitioner, Mr.K.Moorthy, learned counsel appearing for the first respondent and Mr.C.Emalias, learned Additional Public Prosecutor appearing for the second respondent. 8. 7. Heard Mr.T.Muruganantham, learned counsel appearing for the petitioner, Mr.K.Moorthy, learned counsel appearing for the first respondent and Mr.C.Emalias, learned Additional Public Prosecutor appearing for the second respondent. 8. Two contentions have been raised by the learned counsel appearing for the petitioner, firstly by stating that the petitioner obtained an order from the Court below on 10.10.2006, which is earlier in point of time and the learned Magistrate could not have passed a second order on 21.11.2006 and it is a clear abuse of process of law; secondly it is contended that the petitioner is the lawful owner of the vehicle and therefore, the first order dated 10.10.2006, should be complied with and the property should be returned to the petitioner. 9. It is seen that when the Court passed an order dated 21.11.2006 in C.M.P.No.7352 of 2006, filed by the first respondent finance company, the Court took note of the objections of the petitioner and took note of the order passed earlier dated 10.10.2006 in C.M.P.No.5997 of 2006, filed by the petitioner and then having been satisfied that the first respondent herein is ostensible owner, as they are the name holder in the registration certificate, directed release of the vehicle in favour of the first respondent. The petitioner has not challenged the order dated 21.11.2006. Furthermore, the Court considered the earlier order dated 10.10.2006 and after contest passed a reasoned order dated 21.11.2006, which remains unchallenged and therefore, no error can be attributed to the order dated 21.11.2006. 10. The learned counsel for the petitioner placed reliance on the decision of the Hon'ble Supreme Court in the case of Smt. Sooraj Devi, supra, for the proposition that the Court below having passed an order granting interim custody of the vehicle in favour of the petitioner has no power to alter or review its judgment and there is a prohibition in this regard under Section 362 Cr.P.C. In the instant case, it is true that the petitioner obtained an order from the trial Court which is sought to be implemented by filing this revision petition. Even much prior to that the respondent finance company filed a petition before the trial Court, in which notice was issued to the petitioner and the petitioner placed reliance on the earlier order. It is to be pointed out that in the earlier order, the finance company was not a party. Even much prior to that the respondent finance company filed a petition before the trial Court, in which notice was issued to the petitioner and the petitioner placed reliance on the earlier order. It is to be pointed out that in the earlier order, the finance company was not a party. Admittedly, the vehicle in question is under hypothetication agreement with the respondent finance company and in terms of the hypothetication agreement, the finance company continues to remain as 'the owner' of the property till the entire dues are settled and a no objection certificate issued by them for cancelling the hypothetication. Thus, the petitioner continued to remain as 'a hirer' of the vehicle. In such circumstances, the Court below considered the application filed by the respondent company, heard the petitioner and took note of the earlier order passed by it and thereafter, rendered a finding that the respondent finance company is the ostensible owner of the hypothetica. Thus, it is not a case, where the Court reviewed its earlier order, but the order was passed on a fresh application filed by the finance company. The petitioner has not challenged the said order passed in favour of the finance company, but only sought for implementation of an earlier order, which automatically looses effect, since on a subsequent application filed by the finance company, the Court passed a fresh order directing interim custody of the vehicle to the finance company. The facts of the case before the Hon'ble Supreme Court are entirely different, wherein after the Court passed an order, a Miscellaneous Petition was filed to review the order. The Hon'ble Supreme Court took note of the settled legal position that the inherent power of the Court cannot be exercised for doing that which is specifically prohibited by the Court i.e., prohibition under Section 367 of the Code prohibiting from altering or reviewing its judgment. Rather it was a fresh order passed in a fresh application filed by the respondent finance company. It is to be reiterated that when the petitioner secured the first order on 10.10.2006, he did not make the finance company as a party, though he was fully aware that he was the lawful owner of the vehicle, as the vehicle was under hypothetication with the respondent company. It is to be reiterated that when the petitioner secured the first order on 10.10.2006, he did not make the finance company as a party, though he was fully aware that he was the lawful owner of the vehicle, as the vehicle was under hypothetication with the respondent company. It appears the Court at that point of time did not take note of the hypothetical endorsement made in the Registration Certification. In such circumstances, the decision relied on by the learned counsel for the petitioner does not lend any support to the case of the petitioner. 11. The second issue which falls for consideration is whether the petitioner could contend that the first respondent has no right to claim the vehicle by relying on the decisions of this Court by stating that the financier cannot be become the ostensible owner by himself and it is only the R.C., owner who is entitled to file the application for claiming interim custody of the vehicle. In this regard, it is to be noted that the Court below after issuing notice to the petitioner herein heard the matter and taking note of the earlier direction issued, passed the present direction by order dated 21.11.2006, as against which the petitioner has not filed any appeal or revision and the same has attained finality. 12. Further, as regards the right of the first respondent finance company, this Court is bound by the recent decision of the Hon'ble Supreme Court in the case of Anup Sarmah (supra), wherein the Hon'ble Supreme Court after taking into consideration all the earlier decisions held that in an agreement of hire purchase, the purchaser remains merely a trustee/bailee on behalf of the financier/financial institution and the ownership remains with latter and in case the vehicle is seized by a financier, no criminal action can be taken against him, as he is repossessing the goods owned by him. In fact, the trial Court considering the fact that the finance company is the ostensible owner of the vehicle, directed release of the vehicle to the first respondent, subject to certain conditions. Further, it is relevant to point out that the vehicle was in the custody of the first respondent company and after the petitioner gave the complaint, the Police directed the first respondent to surrender the vehicle to them as Crime No.690 of 2006, was registered. Further, it is relevant to point out that the vehicle was in the custody of the first respondent company and after the petitioner gave the complaint, the Police directed the first respondent to surrender the vehicle to them as Crime No.690 of 2006, was registered. This is evident from the averments in the petition. Thus, the vehicle was not seized by the Police from the petitioner for any offence, but it has come to their custody of the Police as they directed the first respondent to hand over the vehicle which was repossessed by them by exercising their rights under the hypothetication agreement. Hence, the decisions relied on by the learned counsel for the petitioner are clearly distinguishable on facts. In view of the above discussion, the petitioner has not made out a case for return of the property in his favour. Accordingly, the Criminal Revision Case fails and it is dismissed. Consequently, connected miscellaneous petition is closed.