M/s. HDFC Bank vs The State and Mr. Suresh Kumar D. Jain

C.S. Karnan, J.—The brief facts of the case are as follows:-

The petitioner herein had filed Crl. M.P. No. 219 of 2007, before the learned XIII Metropolitan Magistrate, Egmore, Chennai, for return of

property, viz., Scorpio car bearing registration No. TN-65-C-8889. The prosecution did not object for return of the property to the petitioner for

the interim custody. The learned Magistrate ordered return of the vehicle to the petitioner after imposing five conditions.

Against the said order, the revision petitioner herein has filed the above revision.

The learned counsel for the revision petitioner has stated that they had financed the purchase of vehicle viz., Mahindra Scorpio Car bearing

registration No. TN-65-C-8889 to the second respondent herein and an endorsement was made to that effect in the R.C. book. The said vehicle

was seized by the petitioner on 09.10.2007 as per the terms and conditions of the loan agreement between the petitioner and the second

respondent and for the reasons that the second respondent committed default in making payment. The petitioner further submitted that on

11.10.2007, a presale notice was sent to the second respondent on 15.07.2007 and he sent a reply that the said vehicle was already seized by the

police in F12 185/07 case No. 150/07, on the file of first respondent-Police and thereafter, the learned Magistrate had released the vehicle to the

second respondent in Crl. M.P. No. 219 of 2007. The petitioners were not aware of the said order as they were purposefully avoided by the

second respondent.

The learned counsel for the revision petitioner further submits that the order of the learned Magistrate in returning the property to the second

respondent is not sustainable under law since the second respondent has availed a car loan from the petitioner''s bank and entered into an

hypothecation agreement with them and therefore, the order of the trial Court in returning the property to the second respondent is against the

terms and agreements of the loan agreement made between both parties. Actually, the petitioner is the lawful owner of the vehicle. In order to

prove the ownership, the registration certificate in the name of the petitioner''s bank has been marked. The learned competent counsel for the

petitioner further contended that the second respondent wantonly failed to implead the petitioner as a respondent in his petition for the return of

vehicle.

The learned competent counsel for the State contended that the physical possession of the vehicle was with the second respondent and that as

the vehicle had been seized from him, the property had been restored to him, on his request, after imposing stringent conditions. The learned

counsel further submitted that the ownership of the vehicle could be decided on the basis of relevant records which had been created for raising of

the said loan. Therefore, the order passed by the learned Magistrate is an appropriate one.

The learned counsel for the second respondent argued that as per the hypothecation agreement, the vehicle was with the second respondent

from whom, the police had seized the vehicle in case No. 150 of 2007 under the order of the first respondent-Police in F12 185/07. At the time of

seizing of the vehicle from the second respondent, the vehicle was under the lawful custody/permissible possession of the second respondent and

as such, the order of the learned Magistrate is sustainable under law. As per the hypothecation agreement, the petitioner has to get his remedy

elsewhere and the same is not entertainable before this Court. Hence, the very competent counsel entreats the Court to dismiss the above revision.

On verifying the facts and circumstances of the case and arguments advanced by the learned counsels on all sides and on perusing the impugned

order of the learned Magistrate, this court does not find any discrepancy in the impugned order. This Court is of the further view that the learned

Magistrate had imposed stringent condition on the second respondent and released the vehicle in favour of the second respondent from whom the

vehicle was seized by the police. Further, the R.C. book is now under the custody of the trial Court. The petitioner, is at liberty to act on the basis

of loan-cum-hypothecation agreement between the parties regarding repayment of loan. This Court''s further view is that the petitioner''s claim has

been made on the basis of loan-cum-hypothecation agreement between the second respondent herein and the petitioner. The vehicle was seized on

the basis of Crime No. 150 of 2007 on the file of the first respondent-Police, therefore, the learned Magistrate acted upon it in an appropriate

manner, since the case comes within the purview of criminal nature. The original cause of action of the petitioner and the second respondent herein

comes within the purview of civil nature. Hence, this court is not inclined to entertain the above revision as the order of the learned Magistrate is

not in any way prejudicial to the interest of the petitioner herein. In the result, the above revision is dismissed. Consequently, the order passed in

Crl. M.P. No. 219 of 2007, on the file of learned XIII Metropolitan Magistrate, Egmore, Chennai, dated 21.02.2007 is confirmed. Accordingly

ordered.