Jammu & Kashmir High Court
Mahindra And Mahindra Financial ... vs Sher Singh And Ors. on 22 September, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
1
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
561-A Cr.P.C. No. 109/2008, MP Nos. D-207/2010 & 123/2008
Date of order:-22.09.2017
Mahindra and Mahindra Financial Services Ltd.
vs.
Sher Singh and ors.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For the Petitioner(s) : None.
For the Respondents(s) : Mr. Ravi Abrol Advocate.
i/ Whether to be reported in : Yes/No
Press/Media
ii/ Whether to be reported in : Yes/No
Digest/Journal
1. In the instant petition, the petitioner seeks quashment of order dated 13th September, 2008, passed by learned Munsiff (JMIC), Chenani in execution proceedings of the order dated 07th February, 2008, passed by the learned Sessions Judge, Udhampur in Criminal Revision. It has been stated that both impugned orders have resulted in prejudice to the petitioner, as the vehicle which has been ordered to be seized through SSP, Jammu, is in its possession. The orders impugned are illegal as the same have been passed without affording any opportunity to the petitioner.
2. It has further briefly stated that the orders impugned are against the facts and law, and respondent No. 1 has mis-stated the facts to regain the possession of the Vehicle Toyota Qualis bearing No. JK02W-1071 561-A Cr.P.C. No.109/2008 & connected MPs Page 1 of 7 2 (hereinafter called as the vehicle in a criminal proceedings), after having failed in two civil suits and the same is illegal/nonest, as no opportunity was provided to the petitioner by the Revisionist Court despite there being the information that the possession of the vehicle was with the petitioner on account of defaults in repayments of the loan amount availed by the respondent No. 1. The hypothecate has ownership rights in the vehicle till the borrower repays the loan amount and thus, the notice to it in the criminal revision was a legal stipulation.
3. The vehicle was purchased by respondent No. 1 after availing the loan from the petitioner, which was repayable in monthly installments. The RC (Annexure-G) contains the endorsement to the extent of the petitioner as hypothecatee. The seizure of the vehicle from the borrower- respondent No. 1 was only made after numerous defaults in repayments were made. The respondent No. 1 did opt for two civil suits for mandatory injunction, directing the petitioner herein for the return of the vehicle before the learned 3rd Additional Munsiff, Jammu and Munsiff, Jammu and the same were dismissed vide order (Annexure-D) dated 28th February, 2006 and order (Annexure-E) dated 27th December, 2007 respectively. The transfer of the vehicle in the record of the RTA, Jammu was being taken up and in the meantime, the vehicle being the blocked asset was at the request of the respondent No. 3 under refinance arrangement by way of loan was given after the execution of the requisite loan documents. Understandably, the change of ownership in the RTA record was to be undertaken b the respondent No. 3. It appears that the vehicle was being run to earn his livelihood at the time when due to certain violations of the Motor Vehicles Act, vehicle was seized by the police. It was subsequently released by the order of the learned Munsiff (JM), Chanani in favour of respondent No. 2 (brother of the respondent No. 3), who was the driver at the time of the seizure by the police as well 561-A Cr.P.C. No.109/2008 & connected MPs Page 2 of 7 3 as the order of release by the Court. The petitioner came to know about the seizure of the vehicle by the police from the respondent No. 3 and its release by the Court order and immediately took back its possession from the respondent No.3. As per the directions of the learned Munsiff (JMIC), Chenani, the petitioner entered appearance and made detailed submissions by way of application (Annexure-E). Despite orders of objections from the respondent Nos. 1 and 2, no objections were filed by the respondents and the Court passed the order dated 13 th September, 2008 impugned.
4. The seizure of the vehicle under the violations of the Motor Vehicles Act and its order of release in favor of the respondent No. 2 is not the matter of controversy herein. The petitioner is aggrieved of the order dated 13 th September, 2008 passed by the learned Munsiff (JM), Chanani, wherein the directions have been given for the release of the vehicle to the respondent No. 1. It will mean from the custody of the financer, whose lien has been recorded in the RC. It is well settled legal preposition that the financer is legally the owner till the loan amount outstands and it is within it competence to deal with the vehicle in any manner it deems fit and proper. The order impugned has resulted in miscarriage of justice particularly because that no opportunity of being heard was given and the net result is the release of the vehicle will be from the financer and in favors of the defaulter. It is only because that the respondent No. 1 was the registered owner. The fact of endorsement "hypothecated to Mahindra and Mahindra Financial Services Ltd." was not considered by the learned Sessions Judge, Udhampur.
5. The judgment relied upon does not go for the facts of the case herein.
The bank has not objection in the entrustment of the possession of the vehicle and thus, between the two contesting parties, the registered owner was competent to take the possession of the vehicle. The RTA has now 561-A Cr.P.C. No.109/2008 & connected MPs Page 3 of 7 4 entered the name of the respondent No. 3 as the registered owner and on this score too, the order impugned is illegal and will result in prejudice to the petitioner as well as the respondent No. 3.
6. On 24.9.2008, the court while issuing notice in the petition, stayed the order impugned dated 13.09.2008 passed by Munsiff Chenani. It further appears that on 01.11.2010 this petition was disposed of by this Court observing that petitioner-herein is not a registered owner, so the order of Court with regard to releasing of the vehicle in favour of respondent No.1 does not suffer from any illegality. It was further held that the petitioner has no locus standi to file present petition. On 12.07.2013, the order passed by this court on 01.11.2010 was recalled on the application moved by respondent No.3. The notice was issued to the petitioner in original petition. Thereafter, Mr. Mohd. Latif Malik, Advocate, had filed Vakalatnama on behalf of the petitioner before Registry and one Mr. S.K.Sharma, Advocate, appeared for respondent No.1. Thereafter none appeared for the petitioner and respondent No.1. At the time of hearing no one appears for petitioner and respondent No.1.
7. I have heard only respondent No.3-Joginder Kumar, who has argued that petitioner has sold the above mentioned vehicle to him against consideration of Rs.1,71,000/-. That after receiving the amount, the vehicle was possessed by him, so the order passed by court below was incorrect because it was the respondent No.2, who was in possession and he was to be given the vehicle in question.
8. I have considered the submissions of respondent No.3.
9. From the perusal of order dated 25.06.2007, it reveals that the vehicle in question was seized by Police Station Kud under Section 207 of M.V.Act from one Roshan Lal No.2 herein. Meanwhile, it further appears that Sher Singh Jamwal-respondent No.1 filed the application for release of vehicle before JMIC Chenani . The application filed by Sher Singh was 561-A Cr.P.C. No.109/2008 & connected MPs Page 4 of 7 5 dismissed for non prosecution and the Magistrate vide order dated 25.06.2007 released the vehicle in favour of Roshan Lal from whom it was seized. Against this order, Sher Singh filed a revision before the Sessions Judge, Udhampur on 03.07.2007. The learned Sessions Judge, Udhampur vide order dated 07.02.2008 allowed the revision and set aside the order of the Magistrate and vehicle was directed to be released in favour of Sher Singh, who was registered owner. Session judge Udhampur while passing the order , has relied upon judgment reported in SLJ 2005 (II) 597, wherein it has been held that person in whose name the vehicle stands registered under MV Act is entitled to the custody of the vehicle until the transfer of the ownership is entered in the certificate of registration. Thereafter Sher Singh filed an execution petition against Roshan Lal before JMIC Chanani, who on 13.09.2008 directed SSP Traffic Jammu to recover the vehicle in question from the possession of Roshan Lal and produce it before the Court. Meanwhile, the petitioner herein has challenged the basic order passed by the Sessions Judge, Udhampur and also order dated 13.09.2008 by virtue of which JMIC, Chanani directed SSP Traffic, Jammu to seize the vehicle, by filing present petition.
10. I have carefully gone through all the orders passed with regard to release of the vehicle from time to time.
11. Magistrate passed order of release in favour of person from whom possession was taken while seizing it under section 207 of M.V. Act. Petitioner herein is a financer and respondent No.3-Joginder Kumar is subsequent purchaser of vehicle. Joginder Kumar has categorically stated that the vehicle is still in his possession.
12. Section 207 of the Motor Vehicles Act, 1988 reads as under:-
"207. Power to detain vehicles used without certificate of registration permit, etc.--561-A Cr.P.C. No.109/2008 & connected MPs Page 5 of 7 6
(1) Any police officer or other person authorized in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of section 3 or section 4 or section 39 or without the permit required by sub-section (1) of section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle:
Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of section 3 or section 4 or without the permit required by sub-section (1) of section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof. (2) Where a motor vehicle has been seized and detained under sub-section (1), the owner or person in charge of the motor vehicle may apply to the transport authority or any officer authorized in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.
13. Bare perusal of this section, it is evident that whoever drives any vehicle in violation of section 3 or section 4 or section 39 or without the permit required by sub-section (1) of section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, it can be seized. Further in terms section 207(2) of Act the owner or person in charge of the motor vehicle may apply to the transport authority or any officer authorized in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such 561-A Cr.P.C. No.109/2008 & connected MPs Page 6 of 7 7 documents, by order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.
14. The fact of registration is only relevant for inquiry of the title and the consequent possession. A final title to the property or right to possess the same can only be determined by the Civil Court of competent jurisdiction. Complicated and intricate question of civil law are not required to be decided by the Magistrate, before whom the single question is to which of the party is best entitled for possession and after considering the right to possess claimed by either party, if the Magistrate decides in favour of one and against the other that should be the end of the matter as far as his Court is concerned. In present case there are now four claimants. But fact of matter is that Sher Singh -respondent no.1 is registered owner of vehicle in question as per registration certificate at the time of seizure . In this way, order of Session Judge dated 07th February, 2008 does not suffer from any infirmity of law. Consequently, the order dated 13th September, 2008, passed by the Munsiff (JMIC), Chenani in execution proceedings also does not suffer from any infirmity of law, because it is step ahead in implementing the order of Session Judge, Udhampur. Both the orders are upheld accordingly.
15. In view of above discussion, this petition is dismissed. However, petitioner and other respondents are at liberty to establish their right before civil court.
(Sanjay Kumar Gupta) Judge Jammu, 22 .09.2017 Ram Krishan 561-A Cr.P.C. No.109/2008 & connected MPs Page 7 of 7