HAMEED Vs. JAYABHARAT CREDIT AND INVESTMENT CO LTD

JUDGEMENT

(1.) Revision petitioner is the petitioner-plaintiff in I.A.4177/85 in O.S. 1017/85 of the II Additional Munsiff Court, Ernakulam. The suit has been filed for declaration that defendants 1 to 3 have no right, title or authority to take possession of the bus bearing Registration No.K.E.E.4998 from the plaintiff and for permanent injunction restraining them from taking possession of the bus from him.

(2.) From the 4th defendant, plaintiff purchased the bus over which the former had entered into hire purchase agreement with the first defendant. According to the plaintiff, the principal amount due from the 4th defendant to the 1st defendant was Rs.1,84,982.40. Plaintiff purchased the bus on 3-5-1983 undertaking to pay the amount due to the 1st defendant. It is the case of the plaintiff that Rs.2,30,784/- has been paid towards the loan and the balance amount due from him to the 1st defendant is only Rs.64,630/-. Contention of the plaintiff is that the transaction between defendants 1 and 4 though described as hire purchase agreement is only a loan transaction, that defendants 1 to 3 have no right to seize the bus from his possession and that at any rate they should not be allowed to take law into their own hands and forcibly take possession of the bus even if amount is due from him. The learned II Addl. Munsiff did not grant injunction. Plaintiff filed C.M.A. 99/1985 and the I Additional District Judge, Ernakulam after hearing both sides refused to interfere with the order of the learned Munsiff.

(3.) Main contention of the revision petitioner (plaintiff) is that even if the transaction between defendants 1 and 4 is construed as hire purchase agreement, 1st defendant cannot seize the vehicle as the forfeiture clause in Ext.B1 agreement is penal in nature and under S.74 of the Contract Act reasonable compensation as determined by the Court alone can be allowed. Counsel for the 1st defendant contended that the agreement is between 1st defendant and 4th defendant and therefore plaintiff has no locus standi to challenge any terms in it. Another contention is that plaintiff alone is not competent to file the suit. It is pointed out that Ext.A2 agreement shows that plaintiff and another person have purchased the bus from the 4th defendant and as that person does not figure as a plaintiff the suit is not maintainable.