Misc. Application No. 968 of 2012 · Uttarakhand High Court · 2012

Judgment

1. Having heard learned counsel for the parties, it appears that there was a truck bearing No. HR 46 A 9157, which was being operated from its office at Bajpur. It was initially owned by one Malkeet Singh, husband Karamjeet Kaur (respondent no. 4). This truck was purchased by Malkeet Singh in 2001 under (cid:145)Hire & Purchase Agreement(cid:146), so certain instalments of the Financer were still to be paid by Malkeet Singh but somehow he could not feel comfortable with the vehicle, so he wished to sell the same and entered into an agreement with applicant Dharampal Bansal on 24.09.2011 for transferring the ownership of truck. This agreement was executed on a stamp paper of Rs. 100/- whereof Jahid, Kulwant Singh and Ali Jaan were witnesses. Copy of the said agreement is Annexure No. 1 to this petition. The de facto possession of truck was delivered to Dharampal with effect from 05.09.2011, at that time, 9 instalments each worth Rs. 14,245/- had been left to be paid. After agreement, Dharampal started to operate the truck and paid 7 instalments to the Financer. During the time of his operation, unfortunately, Malkeet Singh died.

2. It is also pertinent to mention here that at the time of execution of said agreement, as indicated above, Malkeet 2 Singh signed the requisite papers of ARTO without filling its column, so that, as and when, Dharampal pays the complete instalment, it may be convenient for him to get transfer the said truck in his own name. But after her husband, Karamjeet Kaur opened her evil eyes upon the possession of said truck and moved an application to SDM claiming ownership over the same, whereupon SDM directed the Bajpur Police to seize that truck, which was accordingly seized on 17.05.2012 and thereafter, SDM was pleased to hand over the custody of said truck to Karamjeet Kaur.

3. Feeling disgruntled, Dharampal rushed to this Court by way of filing this petition and this Court ordered the police to bring the truck back in its custody and in compliance thereof, the same is lying in the precincts of police station.

This Court has rendered hearing to learned counsel for both the parties. Smt. Karamjeet Kaur has filed her counter affidavit.

5. It has been contended on behalf of respondent no. 4 that this petition under Section 482 Cr.P.C. is not maintainable, because by way of this petition, order of Sub Divisional Magistrate, is under challenge, which was not a judicial order but an administrative one. This contention is not tenable and liable to be rejected, for the reason that Sub Divisional Magistrate has not passed the order, with an intention to maintain the law and order situation of town Bazpur, so this is not an administrative order. Besides, Section 482 Cr.P.C. empowers this Court, inherent powers to secure the ends of justice or prevent the abuse of process of law in any court. The Sub Divisional Magistrate passed the said order not in an administrative capacity, which he could not because of the 3 above reason, as stated above and even, he could not pass the order also in judicial capacity, as the court has already mentioned that such an order passed by the SDM is without any domain, usurping the authority of Judicial Magistrate of the area.

6. It was further argued by the learned counsel for the respondent no. 4 that last two instalments were paid by Karamjeet Kaur, so she is entitled to receive the custody of said truck. The argument is also not convincing because Karamjeet Kaur had no locus standi to pay the instalments, if she did so, it was obviously for mischievous ends and had been done at her own peril. The truck is a moveable property and is governed by the Sale of Goods Act, 1930. Nowhere, provisions envisage that registration of the agreement, was sine qua non.

7. This agreement itself explains that Dharampal was bona fide purchaser of truck. He had paid Rs. 2,96,822/- to Malkeet Singh and had taken responsibility of payment for rest of the instalment. Out of 9, 7 instalments had been paid by him.

8. Learned counsel for the respondent no. 4 argued that the said truck could not be sold to Dharampal, without permission of Financer and the validity of ownership is yet to be determined. Attention of this Court has been drawn towards the papers (Annexure no. 2 to the petition) which was submitted by Dharampal Bansal in the ARTO office wherefor learned counsel for the applicant has explained that soon after death of Malkeet Singh, he foresaw the mischievous attempt of Karamjeet Kaur, so he firstly approached the witnesses of the agreement and secured their affidavits ratifying the contents of the agreement on dated 18.05.2012. Further, when he reached the office of ARTO for transfer of ownership of the vehicle, he 4 submitted the blank prescribed pro forma, which was already signed by its previous owner Malkeet Singh during his life time and then official concerned mentioned the date as 23.05.2012 under the belief that Malkeet Singh is alive. When this fact was brought to his notice that Malkeet Singh is no more then the official of the ARTO obliterated the date mentioned by him in the left side of signature of Malkeet Singh.

9. Learned counsel for the respondent no. 4 argued that the truck was not taken from the possession of Dharampal as disclosed by the report of Sub Inspector. This argument is not acceptable, for the reason being the ostensible owner, it was not supposed all the times to have physical possession over the body of truck, so this Court feels that the truck was in possession of Dharampal for all practical purpose.

10. In view of what has been stated above, this petition is allowed. Respondent no. 2 SHO, Police Station Bazpur, Udham Singh Nagar is directed to hand over the possession of said truck to applicant without asking for any surety or bond. (Servesh Kumar Gupta, J.) 28.09.2012 SKS