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2019 DIGILAW 2140 (RAJ)

Kotak Mahindra Prime Ltd. v. State of Rajasthan

2019-08-08

PANKAJ BHANDARI

body2019
JUDGMENT : Pankaj Bhandari, J. 1. Petitioner has preferred this Criminal Miscellaneous Petition aggrieved by order dated 18.11.2014 passed by Additional District & Sessions Judge No. 20, Jaipur Metropolitan, Head Quarters Chomu, whereby Criminal Revision Petition filed by the Respondent No. 2 was allowed and order dated 19.06.2014 was quashed. 2. It is contended by counsel for the petitioner that initially vide order dated 18.01.2014, the vehicle was directed to be given on supurdagi to Respondent No. 2 at that relevant time. Application filed by the petitioner for release of vehicle on supurdagi to the petitioner was pending. Petitioner is the financier and the vehicle was hypothecated with the petitioner, hence, the petitioner was entitled to the custody of the vehicle. Therefore, after passing of the order dated 18.01.2014 an application was moved to the Court to recall its order and the Court accordingly recalled its order and directed that the matter would be decided afresh after hearing the financier as well as borrower vide order dated 19.06.2014. 3. It is contended that the revisional Court has erred in allowing the Revision Petition filed by the Respondent No. 2-Borrower, on the ground that the Court did not have jurisdiction to alter its judgment in view of Section 323 of Cr.P.C. It is contended that Section 323 Cr.P.C. has no applicability as the order was for interim supurdagi of the vehicle. It was not the final order or the judgment. 4. It is also contended that Supreme Court in Bharath Metha vs. State by Inspector of Police Chennai 2008 (2) Supreme 596 " has held that when a vehicle is purchased under a hire-purchase agreement, the financier remains the owner till the full amount is paid. It held that even though the vehicle is registered in the name of borrower, financier continues to be the owner of the vehicle. 5. Counsel for the petitioner has placed reliance on "Charanjit Singh Chadha & Ors. vs. Sudhir Mehra AIR 2001 SC 3721 , wherein Para No. 5 of which is reproduced hereunder:- "Hire-purchase agreements are executory contracts under which the goods are let on hire and the hirer has an option to purchase in accordance with the terms of the agreement. These types of agreements were originally entered into between the dealer and the customer and the dealer used to extend credit to the customer. These types of agreements were originally entered into between the dealer and the customer and the dealer used to extend credit to the customer. But as hire-purchase scheme gained popularity and in size, the dealers who were not endowed with liberal amount of working capital found it difficult to extend the scheme to many customers. Then the financiers came into picture. The finance company would buy the goods from the dealer and let them to the customer under hire purchase agreement. The dealer would deliver the goods to the customer who would then drop out of the transaction leaving the finance company to collect installments directly from the customer. Under hire purchase agreement, the hirer is simply paying for the use of the goods and for the option to purchase them. The finance charge, representing the difference between the cash price and the hire purchase price, is not interest but represents a sum which the hirer has to pay for the privilege of being allowed to discharge the purchase price of goods by installments." 6. Counsel for the petitioner has placed reliance on Bhopal Singh vs. State & Anr. (Crl. Revision Petition No. 139/1998) decided on 25.02.1999" was a case of handing over of tractor on supurdagi and notices were not issued to the owner of the tractor. The Magistrate, therefore, reconsidered the question of interim custody of the vehicle. High Court held that the order on interim custody was not in the nature of final order and the Magistrate had right to recall his order for good reasons. 7. In the present case in hand, application filed by the financier was pending before the Court. Court directed the vehicle be delivered on supurdagi. When this fact was brought to the notice of the Court, Court recalled its order and directed that the matter be listed for final arguments after hearing the aggrieved persons i.e. financier and the borrower. The said order has been set aside by the revisional Court holding that Court below would tantamount to recall its order. 8. In view of the judgment of Bharath Metha vs. State by Inspector of Police Chennai" (supra) order of interim custody on supurdagi cannot be said to be a final order. Hence, Section 326 Cr.P.C. would have no applicability. 9. 8. In view of the judgment of Bharath Metha vs. State by Inspector of Police Chennai" (supra) order of interim custody on supurdagi cannot be said to be a final order. Hence, Section 326 Cr.P.C. would have no applicability. 9. The contention of counsel for the respondent that he was a registered owner and thus was entitled to supurdagi also does not hold the ground, as the Apex Court in "Bharath Metha vs. State by Inspector of Police Chennai" (supra) has held that till the finance amount is paid, financier continues to be the owner of the vehicle. 10. In "Charanjit Singh Chad ha & Ors. vs. Sudhir Mehra" wherein Apex Court has held that under hire purchase agreement, the hirer is simply paying for the use of the goods and for the option to purchase them. The finance charge, representing the difference between the cash price and the hire purchase price, is not interest but represents a sum which the hirer has to pay for the privilege of being allowed to discharge the purchase price of goods by installments. 11. Revisional Court has clearly erred in allowing the Revision Petition, the misc. petition deserves to be and is allowed. Stay application stands disposed. 12. Matter needs to be remanded back to the Court below for deciding application pertaining to supurdagi after hearing both the parties. 13. Parties are directed to appear before Metropolitan Magistrate No. 25, Head Quarters, Chomu on 13.09.2019.