High Court · 2012

The plaintiff in the Title Suit No. 15 of 2010 has filed this appeal, ch allenging the legality and correctness of the order dated 2.8.2010 passed by the learned Civil Judge, Jorhat in Misc.(J) Case No. 30/10. By this impugned order, the learned Civil Judge has rejected the prayer of the plaintiff for temporary injunction with regard to giving the custody of the vehicle under the plaintiff/ financer. 2. Heard Mr. J. Roy, learned counsel for the appellant and Mr. SR Gogoi, le arned counsel for the respondent No.1, purchaser of Bus No. AS-06D-2458. The res pondent No.2 is the owner of the vehicle; respondent No.3 is the auction purchas er and the respondent No.4 is the guarantor of the owner in hypothecation agreem ent. Despite receiving notice, the respondents No.2,3 and 4 have not appeared to oppose the appeal.

3. ows: The gist of the case giving rise to the filing of this appeal is as foll

3.1 The respondent No.2 Uttam Paul had purchased the aforesaid bus from one Madhurjya Phukan after taking loan from the appellant. Against the loan, the bus was put under hypothecation by way of executing a Hypothecation Agreement and p ower of attorney in favour of the Managing Director of the Finance Company. The hypothecation agreement was executed on 12.5.2008. Within a period of less than one month i.e. on 3.6.2008 the said Uttam Paul executed a sale agreement of the vehicle with the respondent No.1. The respondent No.1 agreed to purchase the ve hicle at a sum of ‘ 5,00,000/- (Rupees five lacs) and out of that consideration a sum of ‘ 3,50,000/- (Rupees three lacs fifty thousand) was paid to the respon dent No.2 as advance. However, the respondent No.2 did not hand over the possess ion of the vehicle to the respondent No.1 as per the sale agreement.

3.2. As a result, the respondent No.1 filed a suit against the respondent No. 2 in the court of Civil Judge, Jorhat, which was registered as Money Suit No.1/0 9. The main prayer of the respondent No.1 in the aforesaid Money Suit was to get a decree of ‘ 3,50,000/-(Rupees three lacs fifty thousand) with interest and an additional prayer was made to attach the vehicle. The suit was decreed ex-parte on 20.3.2009. The learned Civil Judge, though decreed the suit for a sum of ‘ 3 ,50,000/- (Rupees three lacs fifty thousand) with interest @ 18% p.a., declined to attach the vehicle.

3.3 The decree was put in execution in Money Execution Case No. 2 of 2009. I n the execution case, the vehicle was attached. When the financer came to know a bout an attempt to sell the vehicle and about the decree in favour of the new pu rchaser, they filed a petition in the execution court praying for handing over t he vehicle to them. However, the prayer was turned down. Hence, the financer has filed the present suit praying for declaration that the decree passed in Money Suit No. 1 of 2009 was obtained by fraud and as such the same is liable to be s et aside. The other prayer of the appellant in the suit is for a permanent inju nction against the decree holder of Money Suit No.1/09 and also for recovery of the said vehicle etc.

4.. Along with the suit, the appellant also filed a separate petition under Order 39 Rule 1 and 2 of the CPC read with Section 39 of the Specific Relief Act for granting temporary injunction to stay the execution of the decree passed in Money Suit No.1/09 and also to deliver the said vehicle unto the plaintiff. The aforesaid application was registered as Misc.(J) Case No. 31/09. Initially, an injunction order was passed but upon hearing the defendant No.1, the prayer has been turned down vide order dated 2.8.2010, which is under challenge in this app eal. Sri Roy, learned counsel for the appellant submitted that the sale of t 5. he vehicle was against the law and in violation of the hypothecation agreement a nd as such the learned Civil Judge ought not to have attached the bus in executi on of the decree in favour of the respondent No.1. The learned counsel also subm itted that the respondent No.1 was aware of the hypothecation agreement at the t ime of entering into the sale agreement with the respondent No.2 on 3.6.2008 and also at the time of filing of Money Suit No.1/09 and despite this fact, the fin ancer was not impleaded as a party in the suit and as such the decree was obtain ed by playing fraud. The learned counsel also submitted that the owner of the ve hicle namely Uttam Paul also deliberately did not contest the Money Suit No.1/09 to defraud the financer and as a result the earlier suit was decreed ex-parte. Be that as it may, according to the learned counsel, in view of the hypothecatio n agreement, the appellant is the best authority to have the control and custody over the vehicle at least till the disposal of the Title Suit No.15 of 2010. Th e learned counsel also submitted that in view of the hypothecation agreement, t he balance of convenience is in favour of the appellant and if the vehicle is s old out as per the order passed in Money Suit No. 1/09, the suit of the appella nt would be frustrated.

6. On the other hand, Mr. Gogoi, learned counsel for the respondent No.1 su bmitted that no fraud was practised in filing Money Suit No.1/09. According to t he learned counsel, the respondent No.1 was not aware of the hypothecation of th e property. According to the learned counsel, the advance payment was made to th e Uttam Paul and the plaintiff was interested only to recover the money from him and as such the plaintiff did not think it necessary to implead financer. Learn ed counsel also submitted that in stead of filing a fresh suit, the appellant/f inancer may also file an application under Order 21 Rule 95 of the CPC in the e xecution court to get the custody of the vehicle. I have already noted earlier that a petition was already filed in the ex 7. ecution court by the financer on 15.7.2009. Subsequent to that petition also two more petitions were filed on identical prayers. However, the prayers were turne d down on technical ground. I am also of the view that the Order 21 Rule 95 CPC is not application in the instant case since the appellant is not in custody of the property. Besides this, Rule 95 of the CPC is applicable to immovable proper ty. Even the appellant could not file application either to implead it as a part y in Money Suit No.1/09 since the suit was already decreed by the time the finan cier came to know about the sale agreement. Be that as it may, the question abou t the maintainability of the suit on the ground of fraud etc. will be looked in the trial.

8. Now I am concerned only with regard to the custody of the vehicle. Along with the memo of appeal, the appellant has annexed a copy of the hypothecation agreement. Under Clause 3.4 it has been stipulated that the financer shall have an exclusive charge over the hypothecated assets. Clause 3.10 also provides tha t the borrower shall not encumber or transfer the hypothecated assets in any man ner without the express consent from the financer. Clause 5 (j) of the agreement further provides that if the hypothecated property is confiscated or attached o r taken into custody by any authority or becoming the subject of any legal proce eding, it would amount to an act of default of the borrower.

9. The appellant has also annexed a copy of the registration certificate, which was exhibited in Money Suit No.1 of 2009. In the said registration certifi cate, an endorsement was made on 18.12.2007 that the bus bearing registration No . AS-06D-2458 was hypothecated to M/s Shriram Transport Finance Co. Ltd. No doc umentary evidence has been produced on behalf of the respondent to take a view t hat the borrower had refunded the loan amount and the endorsement of the hypothe cation was subsequently erased from the record.

10. For the forgoing reasons, I hold that not only the appellant has a good case for the trial of the suit but the balance of convenience is also in favou r of the appellant/plaintiff. I am also of the view that if the vehicle is hande d over to the respondent No.1 or to the auction purchaser it would defeat the s uit of the appellant. However, the learned Civil Judge has failed to take into c onsideration the important and relevant fact of hypothecation of the property of the plaintiff before rejecting the prayer for injunction.

11. In the result, the impugned order is hereby set aside. It is ordered tha t the Bus No. AS-06D-2458, which has been kept in the police station shall be ha nded over to the appellant; subject to the condition that the appellant/plaintif f executes a bond of ‘ 5,00,000/- (Rupees five lacs) in the trial court. The app ellant is further directed not to sell or transfer the vehicle to any other per son without an order from the court.

12. With the aforesaid directions, the appeal stands allowed.