BHAHULEYAN Vs. STATE OF KERALA

JUDGEMENT

(1.) Does the dictum in Tarun Bhargava v. State of Haryana,2003 3 KerLT 397 Punjab & Haryana] as approved by Honourable Justice K. R. Udayabhanu in the unreported decision in Shibi Francis v. State of Kerala represent the correct law applicable in Kerala now Does the decision in Shibi Francis need reconsideration These questions are to be sorted out in this Crl. M. C.

(2.) These Crl. M. C. s are directed against a common order passed by the learned Magistrate. The rival contestants had claimed release of a vehicle in their favour under Sectoin 451 Cr. P. C. The learned Magistrate by the impugned common order directed that the vehicle be handed over to the registered owner of the vehicle in preference to the person who claimed himself to be the present owner respectively. I shall hereafter refer to them as the registered owner and present owner. The present owner claimed rights from a finance company, I shall hereafter refer to them as the financier, who had admittedly advanced amounts to the registered owner for purchase of the vehicle under a hypothecation agreement, a copy of which is produced as Annexure-XII. The financier had also appeared before the learned Magistrate and supported the claim of the present owner. The learned Magistrate without going into the disputed facts in details, came to the conclusion that on the admitted case of the financier and the present owner there can be no transfer of title from the registered owner to the financier or the present owner. In doing so, the learned Magistrate placed reliance on the unreported decision of another Single Bench (Justice K. R. Udayabhanu) of this Court in Shibi Francis v. State of Kerala (W. P. (C) No. 21411 of 2006 dated 10-10-2006). That decision had considered in detail the law on the question as to whether a financier advancing a loan under a hypothecation agreement has a right to repossess a vehicle in the event of default even if there be provisions justifying that course in the agreement between the parties.

(3.) That decision in turn placed reliance on an earlier decision of the Punjab and Haryana High Court reported in Tarun Bhargava v. State of Haryana, 2002 3 RCR(Cri) 312.