Indiabulls Financial Services Ltd. vs State of Gujarat and 2

Honourable Mr. Justice M.R. Shah

The present Special Criminal Application under Article 227 of the Constitution of India has been preferred by the petitioner-Indiabulls Financial Services Ltd. to quash and set aside the impugned order dated 31/01/2011 passed by the learned Additional Sessions Judge, Jamkhambalia in Criminal Revision Application No. 68/2010 as well as the order dated 21/08/2010 passed by the learned Judicial Magistrate First Class, Dwarka in Criminal Miscellaneous Application No. 35/2010 in so far as directing the petitioner to submit the bond of Rs. 6,30,000/- while releasing the truck in question in favour of the petitioner and not permitting the petitioner to sell the truck in question. Shri Balar, learned advocate appearing on behalf of the petitioner has vehemently submitted that as such the value of the truck in question is Rs. 75,000/- only against which while handing over possession of the muddamal vehicle and giving it to the petitioner condition is imposed to furnish the bond of Rs. 6,30,000/-, which is too harsh and unreasonable. It is further submitted that a sum of Rs. 5,42,907/- is due and payable from respondent no. 2, who has taken the loan and if the petitioner is not permitted to sell the truck in question, which is of the year 2006, condition of the truck will be deteriorated and ultimately at the end of the trial, the petitioner, who has financed the loan on the aforesaid truck will not be in a position to get anything. Under the circumstances, relying upon the decision of the Hon''ble Supreme Court in the case of General Insurance Council and Ors. Vs. State of A.P. and Ors. reported in AIR 2010 SCW 2967 (paragraph 14) it is requested to permit the petitioner to sell the vehicle in question on any condition that may be imposed by this Court. It is further submitted that as such respondent no. 2 has transferred and/or sold and/or agreed to sell the truck in question in favour of respondent no. 3 contrary to the conditions imposed in hire purchase agreement entered into between the petitioner and respondent no. 2 and ultimately the petitioner-financial Company is the sufferer. Under the circumstances, it is requested to allow the present petition and grant the relief as prayed for.

Though served, nobody appears on behalf of respondent no. 2.

Shri L.B. Dabhi, learned APP appearing on behalf of the respondent-State has requested to pass an appropriate order considering the facts and circumstances of the case and considering the decision of the Hon''ble Supreme Court in the case of General Insurance Council and Ors. (Supra).

Heard Shri Balar, learned advocate appearing on behalf of the petitioner and Shri L.B. Dabhi, learned APP appearing on behalf of the respondent-State and considered the impugned orders passed by both the Courts below. It is not in dispute that the petitioner has financed a huge sum of Rs. 3,98,000/- for purchase of truck in question on the basis of the hire purchaser agreement. It is also not in dispute that respondent no. 2 has tried to sell/transfer the vehicle in question in favour of respondent no. 3 contrary to the conditions imposed in the hire purchase agreement. It appears that there is an inter se dispute between respondent no. 2 and the subsequent purchaser-respondent no. 3, who has file the FIR against respondent no. 2 for cheating and/or breach of trust and, therefore, the petitioner submitted the application u/s 451 of the Code of Criminal Procedure to hand over custody of the vehicle in question to the petitioner and permit it to sell the truck in question. The learned Magistrate has passed an order to handover possession of the muddamal truck in question to the petitioner on condition that the petitioner shall furnish bond of Rs. 6,30,000/- and on other conditions, however, has refused the prayer of the petitioner to sell the truck in question. The said order came to be challenged by the petitioner before the learned revisional Court and the learned revisional Court has dismissed the said Revision Application and has confirmed the order passed by the learned Magistrate. Identical question came to be considered by the Hon''ble Supreme Court in the case of General Insurance Council and Ors.(Supra) and in paragraph 14 the Hon''ble Supreme Court has observed and held as under;

In our considered opinion, the aforesaid information is required to be utilised and followed scrupulously and has to be given positively as and when asked for by the Insurer. We also feel, it is necessary that in addition to the directions issued by this Court in Sunderbhai Ambalal Desai (Supra) considering the madate of Section 451 read with Section 457 of the Code, the following further directions with regard to seized vehicles vehicles are required to be given.

(A) Insurer may be permitted to move a separate application for release of the recovered vehicle as soon as it is informed of such recovery before the Jurisdictional Court. Ordinarily, release shall be made within a period of 30 days from the date of the application. The necessary photographs may be taken duly authenticated and certified, and a detailed panchnama may be prepared before such release.

(B) The photographs so taken may be used as secondary evidence during trial. Hence,physical production of the vehicle may be dispensed with.

(C) Insurer would submit an undertaking/guarantee to remit the proceeds from the sale/auction of the vehicle conducted by the Insurance Company in the event that the Magistrate finally adjudicates that the rightful ownership of the vehicle does not vest with the insurer. The undertaking/guarantee would be furnished at the time of release of the vehicle, pursuant to the application for release of the recovered vehicle. Insistence on personal bonds may be dispensed with looking to the corporate structure of the insurer."

Considering the aforesaid facts and circumstances of the case and considering the aforesaid decision of the Hon''ble Supreme Court in the case of General Insurance Council and Ors. (Supra) and considering the fact that as on today a total sum of Rs. 5,42,907/- is due and payable from respondent no. 2, who has taken the loan from the petitioner for purchase of the truck in question, the learned Magistrate ought to have granted permission to the petitioner to sell the truck in question on imposing certain reasonable conditions so that ultimately there is no loss to the petitioner also. It appears that in the fight/dispute between respondent no. 2 and respondent no. 3 ultimately the petitioner-finance Company, who has advanced huge sum on the vehicle in question is the sufferer.

In view of the above and for the reasons stated hereinabove and considering the aforesaid decision of the Hon''ble Supreme Court in the case of General Insurance Council and Ors. (Supra), the impugned order dated 31/01/2011 passed by the learned Additional Sessions Judge, Jamkhambalia in Criminal Revision Application No. 68/2010 as well as the order dated 21/08/2010 passed by the learned Judicial Magistrate First Class, Dwarka in Criminal Miscellaneous Application No. 35/2010 are modified to the extent permitting the petitioner to sell the muddamal truck in question on following conditions; (i) that the petitioner shall furnish bond of Rs. 3,50,000/- with the learned Magistrate;

(ii) that before release of the truck in question, necessary photographs of the muddamal vehicle be taken duly authenticated and certified and a detailed panchnama may be prepared before such release and the same be produced before the learned Magistrate;

(iii that the petitioner shall submit an undertaking to remit the proceeds from the sale/auction of the muddamal truck in question in the event that the Magistrate finally adjudicates that the rightful ownership of the vehicle does not vest with the petitioner and/or it holds that the petitioner was not entitled to sell the vehicle in question. The said undertaking would be furnished at the time of release of the vehicle in question. All efforts shall be made by the petitioner to fetch maximum price while selling/auctioning the disputed vehicle in question.With this, the present petition is allowed. Rule is made absolute to the aforesaid extent.