TATA MOTORS LTD Vs. BORNALI DUTTA BORA

JUDGEMENT

(1.) THE petitioner is a company, incorporated under the Companies Act 1956, and is engaged in the business of manufacturing and financing of commercial as well as private vehicles. By virtue of two separate Loancum-Hypothecation-cum-Guarantee agreements, one entered into on 07.02.2005 and the other on 16.09.2006, the petitioner company financed purchase of two Tata trucks by the opposite party No.1 in her own name. Pursuant to the agreement, dated 07.02.2005, aforementioned, the loan amount given to the opposite party No.1 by the petitioner company was Rs. 4,56,000.00 payable by the opposite party No. 1 in 46 monthly installments; whereas the loan amount, borrowed by the opposite party No.1 from the petitioner company, pursuant to the agreement, dated 16.09.2006, was Rs. 4,67,000.00, the loan being payable in 45 monthly installments. While the first agreement aforementioned led to purchase of the truck, which came to be registered as AS-01-W-7755, the second agreement aforementioned led to purchase of the truck, which came to be registered as AS-01-AA-9162. For the loan amounts so advanced, both the trucks stood hypothecated to the petitioner company as securities for the loans taken by the opposite party No.1 and the opposite party No. 2 stood as a guarantor thereto. On 16.02.2007, the opposite party No. 2, namely, the guarantor, made a telephonic call to Basistha Police Station alleging to the effect that some people had stolen away the said two trucks. Based on this telephonic message, GD Entry No. 474, dated 16.02.2007, was made at the said police station. THE police, vide GD Entry No, 475, dated 16.02.2007, seized 'the said two vehicles. On 22.02.2007, the opposite party No. 1 filed a petition, in the Court of the Sub-Divisional Judicial Magistrate (Sadar), Kamrup, Guwahati, praying for custody of the vehicles, in question. THE learned SDJM called for a report from the police and also a copy of the seizure list fixing 26.02.2007 for necessary order. On the date so fixed, i.e., 26.02.2007, the petitioner company filed an application, under Section 451 CrPC, seeking custody of the said two vehicles. However, the learned Court below passed an order, on 26.02.2007, directing the police to release the vehicles, in question, in favour of the opposite party No. 1, by taking a bond of Rs. 10,00,000.00 for each of the vehicles subject to the condition that the opposite par No. 1 shall produce the said vehicles before the Court as and wher required. Aggrieved by the order, dated 26.02.2007, aforementioned, the petitioner company has impugned the same in the present revision.

(2.) 1 have heard Mr. J. Roy, learned counsel for the petitioner company, and Mr. J. Barman, learned counsel for the opposite party Nos. 1 and 2. I have also heard Mr K Munir, learned Additional Public Prosecutor, Assam, appearing on behalf of the opposite party Nos. 3 and 4.

(3.) CONTROVERTING the submissions made, on behalf of the petitioner company, Mr. J Barman, learned counsel appearing on behalf of the opposite party Nos. 1 and 2, has submitted that the removal of the vehicles, in question, without consent of the opposite party No. 1, who was the possessor thereof, amounted to commission of the offence of theft; hence, in these circumstances, the opposite party No. 1, being the registered owner of the vehicles, was, according to Mr. Barman, entited to obtain possession of the said vehicles and the learned Court below has committed no error in acceding to the prayer so made by the opposite party No. 1. The impugned order is, thus, contends Mr. Barman, wholly consistent with law. This apart, submits Mr. Barman, the loan amounts had been financed to the opposite party No.1 by the petitioner company not on the basis of any hire-purchase agreement, but on the basis of a loan agreement with clauses of hypothecation and, hence, in a case of present nature, no right to repossess the vehicles can be exercised or could have been lawfully exercised by the petitioner company. Support for his submissions is sought to be derived by Mr. Barman from the cases of ICICI Bank Limited Vs. Prakash Kaur & Ors. reported in (2007) 2 SCC 711, and Tarun Bhargava Vs. State of Haryana & Anr. (AIR 2003 P&H 98).