PRAVINKUMAR SHANTILAL SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This petition raises the question of handing over possession of the muddamal truck during the pendncy of the trial. The trial court has directed that the possession of the truck be handed over to the respondent no. 2 accused because he is the registered owner thereof.

(2.) The second respondent registered owner had entered into a contract with the petitioner dated 12/05/1982 whereunder the consideration was fixed at Rs. 95 0 and the petitioner had paid a sum of Rs. 25 0 towards part payment of the agreed amount and the balance amount of Rs. 70 0 was to be paid by monthly instalment of 7 0 beginning from 1/06/1982 and the monthly instalment was to be paid before 15th of every month. In case the purchaser (the petitioner) failed to pay the instalments the vendor had reserved his right to take appropriate legal proceedings and the possession of the truck was handed over to the petitioner. Thus the petitioner was in lawful possession of the said truck with the express consent of the second respondent.

(3.) The petitioner paid first instalment of Rs. 7 0 in two parts Rs. 5 0 on 21/06/1982 and Rs. 2 0 on 2/07/1982 He also paid Rs. 6850.00 by two drafts dt. 21st and 22/07/1982 and claimed that an amount of Rs. 150.00 was paid to the lawyer towards drafting the agreement. Thereafter in August 1982 the truck met with an accident and there was extensive damage to the truck for which a claim was made from the insurance company. It is contended by the petitioner that he had to spend a very substantial amount towards the repairs of the truck and as the truck was out of business he could not make the payment of instalments and he had written to the second respondent to take the amount of the insurance claim towards the dues. On 15/09/1982 the petitioner had written to the second respondent a letter stating that the truck had met with an accident on 25/08/1982 and there is estimated damage of Rs. 35 0 and the insurance claim was made and survey had also been made. It was also mentioned therein that since the truck was hypothecated with the Bank by the second respondent the insurance company would make the payment to the bank and it was mentioned that the insurance company was likely to sanction a claim of Rs. 21 0 and it was also further stated that since the petitioner was incurring all the expenses for repairs he should be given credit of that amount. It was also pointed out that he had paid two instalments of Rs. 14 0 and a sum of Rs. 56 0 was remaining to be paid. It was also stated that after deducting the insurance amount that might be received he was willing to pay up the entire dues and he had also requested to let him know as to what was the outstanding amount of the bank so that he could make arrangement for payment to the bank. By another letter dt. 30/09/1982 it was mentioned that the truck was likely to be repaired soon. It was also mentioned that it was necessary to obtain copy of the panchnama and therefore the petitioner requested for copy of the panchnama and stated that until that panchnama was furnished there would be delay in sanctioning the amount from insurance company.