Disposed

Cholamandalam Investment and Finance Co. Ltd., v. The State of Andhra Pradesh

Telangana HC2 Sept 2014CRLRC/1418/2014

Case brief

AI extract

What is this about?

The High Court held that a financier is entitled to repossess and sell a hypothecated vehicle without court intervention upon borrower default, even if the vehicle is involved in a criminal case, provided the purchaser undertakes to produce it during trial.

What did the court decide?

No relief granted; the revision was disposed of with an observation that no court intervention is needed for the financier to sale the vehicle.

Cholamandalam Investment and Finance Co… — Contract and Commercial Disputes | Telangana HC (2014)

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THE HON’BLE DR. JUSTICE B. SIVA SANKARA RAO

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CRIMINAL REVISION CASE No.1418 OF 2014

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% 02-09-2014

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# Cholamandalam Investment & Finance Co. Ltd., Having its Regd. Office at Dare House, No.2 NSC Bose Road, Chennai-600001 Tamilnadu State Rep. by its Power of Attorney Holder Mr. Ali Abbas Kashani, Deputy Manager Legal, S/o. Mr.Late Vali Baig Kashani.

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… Revision Petitioner

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$ The State of Andhra Pradesh, Through the Public Prosecutor, High Court of Judicature at Hyderabad Through SHO Madanapalli II Twon P.S. Chittoor and another.

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… Respondents

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! Counsel for the petitioner : M/s. S.R. Sanku.

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Counsel for Respondents : Public Prosecutor

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< Gist:

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> Head Note:

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? Cases referred:

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01. AIR 1992 SC 1066 02. (2006) 6 SCC 736 03. 1994 (2) APLJ 334 (HC) 04. (2007) 2 SCC 711 05. (2006) 2 SCC 598 06. (2006) 2 SCC 677 07. AIR 2003 SC 638

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THE HON’BLE DR. JUSTICE B. SIVA SANKARA RAO

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CRIMINAL REVISION CASE No.1418 OF 2014

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ORDER:

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The revision, under Sections 397 and 401 of Criminal Procedure Code, 1973 (for short, Cr.P.C.), is filed by the petitioner against the dismissal order, dated 09.05.2014, in Crl.M.P. No.7984 of 2013 in C.C. No.283 of 2013 on the file of II Additional Judicial Magistrate of First Class, Madanapalli; on the petition seeking leave of the Court to sell away the vehicle in issue financed by the petitioner company.

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2. The 2^nd respondent herein filed a report before the Station House Officer, Madanapalli Police Station stating that his vehicle i.e. TATA Eicher bearing No.AP 03 TC 1328 was stolen by his driver, the same was registered in Crime No.111 of 2013, investigated and final report was filed and the learned Magistrate has taken the cognizance of offence. While so, the 2^nd respondent - de facto complainant filed Crl.M.P. No.4787 of 2013, sought for interim custody of the vehicle. After hearing, the learned Magistrate granted interim custody of the vehicle by order dated 13.08.2013. Thereafter, the revision petitioner herein, who is the financier to the vehicle in issue, filed Crl.M.P. No.7984 of 2013 sought leave of the Court to sell away the vehicle. The learned Magistrate dismissed the said petition by order dated 09.05.2014. Hence the revision against the State represented by the Station House Officer, Madanapalli II town Police Station and Sri D. Prabhakar, who is the borrower of the loan for the vehicle.

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3. The grounds in the revision are that the learned Magistrate went wrong in dismissing the petition in not permitting the sale of the seized vehicle of the 2^nd respondent, to whom they financed for purchase of the vehicle, covered by hypothecation agreement, contractual terms in specific, even the 2^nd respondent - owner of the vehicle admitted the said finance of the amounts from the revision petitioner entity and the vehicle was seized by the said entity for the installments fallen due; that the learned Magistrate ought to have granted

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permission to bring the vehicle to sell, pursuant to the contractual terms, otherwise the vehicle seized by the financier entity will be without utility and being damaged soon, as such the financier will put to loss, equally to the owner, who is chronic defaulter for payment of the installments, that entitles the financier to bring the property to sale, hence to set aside the dismissal order of the learned Magistrate and accord permission for sale.

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4. The learned counsel for the revision petitioner reiterated the said grounds of revision impugning the order, also drawn attention of the Court to the wording of Section 451 Cr.P.C. and placed reliance upon some expressions of the Constitutional Courts in this regard being referred as per the relevancy.

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5. Whereas it is the contention of the counsel for the 2^nd respondent that the seizure itself is illegal, for which he addressed a letter to the financer with a right to question; that they cannot sell the vehicle; that he is ready to pay installments as addressed by the financier and against the dismissal order of the learned Magistrate, which is within the legal parameters, this Court while sitting in revision no way can interfere and hence to dismiss the revision. Perused the material on record and also heard the learned public prosecutor.

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6. Now the points that arise for consideration are,

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01. Whether there is any permission of the Court required to the financier, if he got a lien under Section 171 of the Indian Contract Act, 1972 from the terms of the agreement covered by the contractual obligations, to seize the vehicle and to bring it to sale for realization of the installments due, that defalcated, in particular, from the vehicle involved in a criminal case on the report of the owner of the vehicle against his alleged driver while in use of the vehicle has committed theft? If so, the impugned order of the learned Magistrate dismissing the application negating the right for sale is liable to be set aside and with what observations?

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02. To what relief?

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7. Point No.1

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7(a). Section 2 Sub-Section (30) of the Motor Vehicles Act, 1988 defines ‘owner’ to mean a person in whose name a motor vehicle stands

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registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hirepurchase, agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement. From this definition, and even undisputedly the vehicle is registered with the Regional Transport Office concerned in the name of the said borrower of the loan from the said financier entity by name D.Prabhakar to say he is the owner.

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7(b). Section 171 of the Indian Contract Act, 1972, which deals with General lien of bankers, factors, wharfingers, attorneys and policybrokers, Bankers, factors, wharfingers, attorneys of a High Court and policy-brokers may, in the absence of a contract to the contrary, retain as a security for a general balance of account, any goods bailed to them; but no other persons have a right to retain, as a security for such balance, goods bailed to them, unless there is an express contract to that effect. It was held by the Apex Court in Syndicate Bank v. Vijay

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Kumar and other s^[1] that in the mercantile system, the Bank has a general lien over all forms of securities or negotiable instruments deposited by or on behalf of the customer in the ordinary course of banking business and that the general lien is a valuable right of the banker judicially recognised and in the absence of an agreement to the contrary, a Banker has a general lien over such securities or bills received from a customer in the ordinary course of banking business and has a right to use the proceeds in respect of any balance that may be due from the customer by way of reduction of customer's debit balance. Such a lien is also applicable to negotiable instruments including FDRs which are remitted to the Bank by the customer for the purpose of collection.

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7(c). As per Section 221 of the Indian Contract Act, in the absence of any contract to the contrary, an agent is entitled to retain goods, papers, and other property, whether movable or immovable of the principal received by him, until the amount due to himself for

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commission, disbursements and services in respect of the same has been paid or accounted for to him.

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7(d). From the above, leave about Section 221 of the Indian Contract Act, that is, Agent’s lien on principal’s property, coming to Section 171 of the Indian Contract Act, general lien that can be exercised by the banker, it includes the financier recognized under RBI guidelines under the RBI Act (undisputedly the revision petition entity is one of such recognized) to exercise the lien over the vehicle, for which the finance is made. Here, it is relevant to refer the loan agreement-cum-vehicle finance and the written stipulations therein, in particular, condition No.11, which speaks repossession, termination and company’s other rights, that is to say, on the occurrence of any of the aforesaid events of default contained in Article 10, the rights of the Borrower over the Asset shall stand determined void ipso facto without any notice and the Borrower shall be bound to deliver forthwith the Asset to the Company in the same condition in which it was originally received by him with all accessories/ modifications done by Borrower whatsoever ordinary wear and tear excepted. Failure or refusal of the Borrower to surrender the Asset shall constitute unlawful retention for which the company shall be entitled to initiate criminal action, without prejudice to other rights/ legal remedies available to the company. In case of any default in repayment including an occurrence of any of the aforesaid events of default and/ or failure to surrender the asset as mentioned herein above, the Company shall cause a 7 day notice to be issued to the Borrower at his address as registered with the Company. The notice shall be deemed to be served on the Borrower within 24 hours of posting, the notice by the Company even if the notice so sent returns back unserved for whatever reason and the confirmation from any authorized officer of the company for having posted the notice to the Borrower shall be final and binding in this regard.

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7(e). So far as the repossession, in case the Borrower fails to make payment of the dues or surrender the asset to the company and / or rectify the breach of the terms of the contract in compliance with the

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notice mentioned above, to the satisfaction of the Company, without prejudice to its other rights available under the Agreement, the Company may be entitled to take possession of the Asset and for said purpose, enter any place where the Asset may then be or is likely to be, remove or take possession of the same.

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8(a). A combined reading of condition Nos.1, 8 and 10, it indicates the Borrower hereby hypothecates the property as security in favour of the financier by way of an exclusive first charge, where the Asset is vehicle, borrower shall register the same in his name within such time as is stipulated in law and shall also ensure that the hypothecation of the vehicle with the Company is endorsed and recorded in the certificate in the Certificate of Registration and until release of the Asset from hypothecation by the Company in writing, the borrower shall not sell, transfer or create any other hypothecation etc. From this, it is clear that, pursuant to the wording of Section 171 of the Indian Contract Act, there is a written stipulation for any amounts defalcated with right to exercise the lien by the financier incorporated in the agreement.

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8(b). The Apex Court in Indian Oil Corporation v. NEPC India

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Ltd., and other s^[2] , it is in relation to a quash proceedings from the dispute arisen out of the breach of contract on maintainability of the criminal proceedings for prosecution, while speaking on the practice of invoking criminal proceedings for civil remedies and on the concept of Breach of Contract with reference to Sections 403, 405 and 415 of Indian Penal Code, 1860 also considered relating to hypothecation, ownership and possession thereunder in relation to debtor and creditor for the beneficial interest over the property when charge in the right of the creditor to take possession and sale the property to recover its dues within the beneficial interest from the nature of charge; observed with regard to the hypothecation whether there is entrustment concerned, at para 25 that “hypothecation is a mode of creating a security without delivery of title or possession. Both, ownership of the movable property and possession thereof, remain with the debtor. The creditor has an equitable charge over the property and is given a right to take

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possession and sell the hypothecated movables to recover his dues and the creditor may also have the right to claim payment from the sale proceeds and in Ramanatha Aiyar’s Advanced Law Lexicon (3^rd Edn. (2005) Vol.2, pages 2179 and 2180 also defined ‘hypothecation’. To that extent thereby it mean a charge in or upon any movable property, existing or future, created by a borrower in favour of the secured creditor, without delivery of possession of the movable property to such creditor, as a security for financial assistance and includes floating charge and crystallization of such charge into fixed charge on movable property. But there is no entrustment of the property or entrustment of dominion over the property by the hopothecatee (creditor) to the hypothecator (debtor) in an hypothecation. When possession has remained with the debtor/ owner and when the creditor has neither ownership nor beneficial interest, obviously there cannot be any entrustment by the creditor.”

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8(c). Here, though other aspects of the expression no way relevant for the purpose of the case on hand; what is meant by hypothecation crystalises that the creditor, for the default made pursuant to the agreement, is entitled to take repossession of the property from the debtor. Here, the clauses 1, 8, 10 and 11 of the loan agreement – vehicle finance specifically provided for such recourse, undisputedly.

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8(d). In fact a Division Bench of this Court in State Bank of

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India v. S.B. Shah Ali (died) and Ors.,^[3] in dealing with Section 172 of Contract Act and Section 58 of Transfer of Property Act, held that once there is a clause in the agreement empowering the hypothecatee i.e. financier to seize the vehicle and bring to sale for recovery of the defalcated amounts due, no intervention of the Court is required, it is as per the contractual terms entitled. It was referred to Section 172 of the Indian Contract Act that, hypothecation is not only method for creating security and also without transferring their possession and in such case once there was an intention to create a security, equity gives effect to it

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in enforcing the terms thereof. Whether there is a mere charge in the hypothecation agreement, the hypothecatee has to approach the Court and seek intervention of the Court for obtaining money decree and for bringing the hypothecated goods for sale through the Court. When there is any specific clause in the hypothecation agreement empowering hypothecatee to take possession of the goods and sell the same, in the event of default in payment, as per the said terms, hypothecatee can proceed ahead without intervention of the Court.

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8(c). In ICICI Bank Ltd., v. Prakash Kaur and other s^[4] referring to the earlier expression in Ramesh Kumari v. State (NCT OF DELHI)^[5] it was held that the financier has no right to take the law in his hands to seize the vehicle by extra legal means but for to enforce pursuant of the terms of the contract for hire purchase or hypothecation, as the case may be, including for the seizure or for right to sale provided therein.

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8(f). In Orix Auto Finance (India) Ltd., vs Jagmander Singh

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and another^[6] on the scope of hire purchase from the terms of the agreement between Financier and Borrower; it was observed at para 8 that, when the hire purchase agreement at clause 10 clearly permits for repossession by financier, the question to be decided if at all in dispute is what is the amount that is defaulted and that is to be entitled by the financier therefrom. It was ordered that the vehicle was directed to be released on payment of defaulted installments. It further spelt out in para 9 that, if the agreement permits the financier to take possession of the financed vehicle, there is no legal impediment on such possession being taken.

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8(g). From this analogy and in the factual matrix including from the vehicle finance-cum-loan agreement; there is the hypothecation provided and the hypothecatee i.e. financer, for the default made is entitled to take repossession of the vehicle and bring the same to sale for realization of the defalcated amount, other incidental dues and other excise amounts therefrom, after assessment of dues, the debtor is

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entitled to be paid any balance remained. Here from the above proposition, one thing is certain that hypothecatee i.e. financier is entitled without intervention of the Court by virtue of the specific terms of the contract, hypothecation for the defalcation made by debtor for payment of installments to realize the sale proceeds on repossession of the vehicle and appropriate dues and to pay rest to the debtor.

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8(h). Once such is the case, the only thing to be considered is, whether the creditor is obligated or otherwise entitled to move the criminal Court for according of any permission under Section 451 of Cr.P.C. In so far as present facts concerned, no question of confiscation of the vehicle in the criminal case arise as it is on the owner’s report of the driver committed theft, the same registered as crime and vehicle given for the owners interim custody. As such the financier can seize for its sale. As per the financiers claim, it got right to sell the hypothecated vehicle even involved in the criminal case that too the vehicle is already taken to interim custody on petition filed by the original owner i.e. de facto complainant here the borrower and the vehicle seized by the financier from the borrower.

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8(i). Though not in exact words, such a situation has arisen before this Court way back in 2006, in Crl.P.No.1404 of 2006, between Shah Nainimal Jain and 2 Others v. State of Andhra Pradesh. It was ordered theein on 24.03.2006 under Section 482 of Cr.P.C. on the factual matrix that by means of interim custody, the revision petitioners 3 in number supra taken possession of the property, which is subject matter of theft from thieves and the accused also committed the murder for gain; on execution of bond for Rs.15,00,000/- with two sureties while the case was pending at crime stage. Later, when the case ripen for trial, there was a Court direction to the said interim custody holders to exhibit the property before the Court to produce the same during the trial as one of the material links against the accused to use in evidence. However, it was contended that the property was the pledged articles i.e. gold jewellary and the persons, who pledged with him entitled to have taken away and he is only the pawn broker, he need not produce the property.

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That contention was negated by the Court with an observation that once such interim custody was taken to keep the property as it is in condition to produce as and when required, it is the duty of the person to produce the property as undertaken before the Court in so permitting for interim custody and cannot avoid or abdicate from that obligation much less to impugn notice, pursuant to it by invoking Section 482 of Cr.P.C. through the conclusion was so holding and even by referring the expression of the Apex court in Sunderbhai Ambalal Desai v. State of Gujarat^[7] regarding the custody of different kinds of property.

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8(j). In fact even in such a case, the person who has taken interim custody by appraising the facts sought for summoning of the persons with whom the property lies for taking the recourse to cause produce. In the case on hand, that difficulty without being arisen can be taken some precautions viz., so far as the seized property (vehicle) concerned, there is a requirement of preparing a detailed panchanama, taking of photographs exhibiting the same during trial without even production of the property to exhibit as material object. Apart from it, while sale of the vehicle, the financier shall appraise to the purchaser this fact and any requirement of production in Court for trial and an undertaking for the same to comply it is therefrom concluded that when the borrower having taken the interim custody of the vehicle and not final custody from any entitlement and when bound to produce, failing which the bond has to be forfeited; equally the financier, who seized it to produce it kept with and otherwise sold from such right as per hypothecation to obtain undertaking from purchaser to produce.

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8(k). Here from this analogy, it is important to note that the 2^nd respondent to the revision petition, in whose name the property stands as owner within the meaning of Section 2 Sub Section 30 of the M.V. Act, was given interim custody and it is while in his interim custody pursuant to clauses 8, 10 and 11 of hypothecation loan agreement-cum- vehicle finance claimed seizure of the vehicle, gaining of repossession in saying he want to bring property to sale, to realize the amounts. In according

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permission sought by him, when the interim custody given is to reproduce the vehicle by keeping as it is in condition and when such is the case, that too when there is a right recognized by Law, to enforce the contractual terms of the seized vehicle by gaining re-possession without intervention of Court, it is for such creditor, who financed the vehicle to seize and proceed with the sale and there is no need to ask the Court to lend support for such recourse of sale that too when no intervention of Court is required as per settled expressions of the Apex Court supra, but for to say the person whosoever in possession (from such sale) is bound to produce the vehicle when required by the Court as the terms and conditions of the interim custody include execution of the bond and taking of photographs and furnishing of security that once complied with, which the learned Magistrate can enforce, if necessary, by marking the same in evidence, if not, securing back the vehicle during trial and that this Court while sitting in revision, though under Section 451 of Cr.P.C. otherwise entitles to accord permission for sale of any property, which is subject to speedy and natural decay or otherwise expedient to do so, is not inclined to do so against the dismissal order of the learned Magistrate, but for clarifying the above proposition of law.

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8(l). Thus, it is for the financier, who is entitled in his own right without intervention of the Court on the repossession of the property for the defaults made, if necessary to bring the vehicle to sale and realize. Accordingly, Point No.1 is answered.

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09. Point No.2:

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Accordingly, the revision is disposed of with the observation of no intervention of the Court is required once as per the hypothecation agreement terms, the creditor/ financer got right of repossession and sell the vehicle, for enforcing the contractual obligations. However, an undertaking from purchaser to produce the vehicle if required before the Court during trial is to be obtained for the Court otherwise even proceed against person in custody to enforce for production.

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The miscellaneous petitions, if any, pending in this revision shall stand closed.

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DR. B. SIVA SANKARA RAO, J

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02.09.2014 Note: LR copy to be marked – Yes.

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