Ess Kay Finance Limited Through ... vs The State Of Madhya Pradesh
2022 Latest Caselaw 2907 MP

                                   1
      IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
                                 BEFORE
              HON'BLE SHRI JUSTICE RAJENDRA KUMAR (VERMA)
                          ON THE 2nd OF MARCH, 2022

                   CRIMINAL REVISION No. 5505 of 2019

         Between:-
         ESS KAY FINANCE LIMITED THROUGH ANIL S/O
         GOVINDPRASAD       RAWAT     AUTHORIZED
         REPRESENTATIVE G-1 G-2 NEW MARKET KHASA
         KOHTHI     CIRCLE    JAIPUR   RAJASTHAN
         (RAJASTHAN)

                                                                 .....PETITIONER
         (BY MS. DIPIKA RATHI, ADVOCATE)

         AND

1.       THE STATE OF MADHYA PRADESH STATION
         HOUSE OFFICER THROUGH PS NARVAR (MADHYA
         PRADESH)

2.       VIJAY SINGH JHALA (DEAD) REPRESENTATIVE
         SMT. PADAMA JHALA W/O LATE SH. VIJAY SINGH
         JHALA VILLAGE NARVAR DIST. UJJAIN (MADHYA
         PRADESH)

                                                              .....RESPONDENTS
         (BY SHRI HEMANT SHARMA, G.A. FOR STATE & NONE FOR
         RESPONDENT NO.2 )

      This revision coming on for ADMISSION this day, the court passed the

following:
                                    ORDER

The petitioner ESS Kay Finance Limited has filed the present revision petition under Section 397 & 401 of Cr.P.C. being aggrieved by the order dated 30.9.2019 passed by First ADJ, Ujjain in CRR No.172/2019 and order dated 20.08.2019 passed by JMFC, Ujjain in RCT No.4526/2019 whereby the Tractor bearing Registration Number MP-13-AB-5505, has been released in favor of respondent no.2 on the application filed under Section 451 and 457 of Cr.P.C.

As per the prosecution story, the vehicle was seized by the police under the office 279 and 337 of IPC in connection with FIR No.127/2019 registered at police Station Narvar, Ujjain.

Respondent no.2 and the petitioner have preferred separate application for releasing the vehicle on interim custody. Learned Magistrate has allowed the application of respondent no.2 and dismissed the application of the petitioner and

thereafter, the revision preferred by the petitioner has also been dismissed.

Challenging the aforesaid order, it is submitted by learned counsel for the petitioner that the vehicle was purchased by Vijay Singh Jhala, husband of respondent no.2 through the finance amount provided by the petitioner company.

It is further submitted that respondent no.2/wife of the Vijay Singh Jhala has failed to payment the EMIs towards the loan amount, therefore, the petitioner is entitled for interim custody of the vehicle/tractor. The learned ASJ as well as learned JMFC has failed to appreciate the factual conditions and the settled position of law and released the vehicle in favour of respondent no.2 wrongly.

Counsel for the petitioner has placed reliance on the judgments of Hon'ble Apex Court in the case of Charanjit Singh Chadha and Others Vs. Sudir Mehra, AIR 2001 SC 3721 and Manipal Finance Corpn. Ltd. vs. T. Bangarappa and Another, 1994 SCC (Sup)1) 507 , Shriram Transport and Finance Co. vs State of Madhya Pradesh decided on 18.04.2017 passed in MCRC No.7114/2015 this Court has also held that the law is settled that the hire purchase agreement in law is an executor contract of sale and confers no right in rem on hirer until the conditions for transfer of the property to him have been fulfilled. It is further well settled that it is the finance company who is the real owner and entitled to the possession of the property as it is the finance company who is the real owner and entitled to the possession of the property as it advanced loan to the hirer, till the terms and conditions of the Hire Purchase agreement are complied with in all respects.

From the documents filed alongwith the petition, it is clear that the vehicle in question as financed by the petitioner in favour of respondent no.2/ Vijay Singh Jhala (died) and his wife has failed to deposit the EMI, therefore, the petitioner/ESS Key Finance Limited is very much entitle for interim custody of the property. The learned Magistrate as well as Additional Sessions Judge, without considering the aforesaid legal and factual position, vide the impugned order, has directed to release the vehicle in favour of respondent no.2, therefore, impugned orders cannot be sustained.

Accordingly, this petition deserves to be and is hereby allowed. It is directed

that on furnishing 'supurdaginana' in the sum of Rs.10/- lacs, to the satisfaction of the trial Court with an undertaking that the vehicle in question shall be produced before the Court as and when required, the same shall be given on interim supurdagi to the petitioner company.

Resultantly, the petition stands disposed of. Certified copy, as per rules.

(RAJENDRA KUMAR (VERMA)) JUDGE amit

AMIT Digitally signed by AMIT KUMAR DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=HIGH COURT OF MADHYA PRADESH BENCH INDORE, postalCode=452001,

KUMA st=Madhya Pradesh, 2.5.4.20=18db6b55824fa1834dc7e61d 06ed3c79a81bc156ec0309c5245d47a0 a52604de, pseudonym=713D9BD68EDDADCD6B

R 88DA2B1BCDCFC0369478F5, serialNumber=62B9B1A094FCDF2F010 7E91326BC51DC9DCF83F25C9D67245 FE3BCCFD0F2DB67, cn=AMIT KUMAR Date: 2022.03.03 17:53:08 +05'30'