R KUMAR Vs. S P MUTHUKUMARASWAMY

JUDGEMENT

(1.) THE revision petitioner field a suit in O. S. No. 6792 Of 1999, in the City Civil Court at Madras (III Assistant Judge), for declaration that the seizure and custody of the vehicle bearing Reg. No. TN-01 e. 3211, 1992 Model Ashok Leyland lorry, by the defendant on 16. 9. 1998 is illegal and untenable, and for permanent injunction restraining the defendant from alienating, using, mortgaging of creating any encumbrances on the said vehicle and for an order of mandatory injunction, directing the defendants to release the vehicle to the plaintiff and for damages.

(2.) THE plaint in that suit was presented into Court on 21. 9. 1998. THE revision petitioner is the plaintiff. One Padamchand Choudhry and Anoop Chand Choudhry are the defendants. THE defendants in the suit are described as doing finance in the name and style of Timco Finance and Choudhry Syndicate, and the 1st defendant is said to be the proprietor of both the finance companies.

(3.) THE order passed by the lower court cannot be sustained since this important aspect of the matter has been lost sight of by the lower court. Admittedly, the property was seized by the defendants from the plaintiff on 16. 9. 1998. From the Commissioner's report, it is clear that the Commissioner seized the property viz. , the vehicle on 24. 2. 1999 from elaiyaj Mudali Street, Korukkupet, Madras-21. At the time when the vehicle was seized, the plaintiff and his counsel alone were present. Neither the defendant s nor their counsel were present there. It is also to be pointed out that the report of the Commissioner does not say that it was seized from custody of the 3rd party. THE 3rd party has given his address as carrying on business in Thiruvotriyur high Road, Chennai. But the property has been seized from a different place. THE Commissioner has stated in his report that on 20. 2. 1999, at about 11. 30 am. , he went to Moolakadai for seizing the vehicle. According to him, normally, the vehicle will be parked the re. Again he visited on 22. 2. 1999 and went to the 100'Road and found the vehicle at Elaiya Mudali Street, Korukkupet and one Murthy was the driver of the Vehicle. According to the Commissioner, at that time one Jamal, who was there, had claimed that he was the present owner of the vehicle. THE Commissioner has also noted that at that time, the said jamal was not in a position to produce the documents relating to the vehicle and at that time, the defendants'counsel came there but he refused to receive the notice and thereafter, the Commissioner went to the police station at Korukupet for getting resistance of the police. Again he went on 24. 2. 1999 to Elaiya Mudali Street, Korukkupet, and seized the vehicle bearing registration No. TN-01 E. 3211 in the presence of its driver Murthy. THErefore, the report of the Commissioner clearly shows that the vehicle was not in the custody of the 3rd party, or his predecessor in title at the time when he seized the vehicle. THErefore, the III Assistant Judge was not justified in ordering the return of the lorry to the 3rd party.