Madras High Court
P. David Raj vs The Reserve Bank Of India on 6 December, 2021
WP(MD) No.21482 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 06.12.2021
CORAM
THE HON'BLE MR. JUSTICE M.SUNDAR
W.P(MD)No. 21482 of 2021
and
WMP (MD). No.18048 of 2021
P. David Raj,
... Petitioner
Vs.
1. The Reserve Bank of India,
represented by its
Regional Director,
Fort Glacis, Rajaji Salai,
P.B. No.40,
Chennai – 600 001.
2. The Regional Transport Officer,
Office of the Regional Transport Officer,
Marthandam,
Kanyakumari District.
3. The Branch Manager,
Sri Ram Transport Finance Company Ltd.,
Marthandam,
Kanyakumari District.
4. The Branch Manager,
Sundaram Finance Ltd.,
Neiyattinkarai,
Trivandrum District,
Kerala State.
1/15
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WP(MD) No.21482 of 2021
5. The Branch Manager,
ICICI Bank Ltd.,
Tirunelveli,
Tirunelveli District.
... Respondents
PRAYER Petition filed under Article 226 of the Constitution of India, for
the issuance of a Writ of Mandamus, forbearing the second respondent from
transfer the ownership in respect of the 3 Tipper Lorries namely TN 75 AK
-6143 (Bharat Benz), TN 75 AL- 4784 (Bharat Benz) and TN 75 AM -7947
(TATA Prima LX) to the respondents nos. 3 to 5 or any other third parties
without following the provisions U/s. 51 (4) of the Central Motor Vehicle
Act, 1988 and pass orders.
For Petitioner : Mr. A.C. Asaithambi
For Respondents : Mr. M. Lingadurai,
Special Government Pleader
for R2
ORDER
The subject matter of captioned main writ petition is constituted by
three Tipper Lorries bearing registration numbers / make TN 75 AK -6143
(Bharat Benz), TN 75 AL- 4784 (Bharat Benz) and TN 75 AM -7947 (TATA
Prima LX) (hereinafter collectively 'said Trucks' for the sake of convenience
and clarity).
2. Mr. A.C. Asaithambi, learned counsel for writ petitioner who is
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WP(MD) No.21482 of 2021
before me in this Admission Board, submits that the writ petitioner had
entered into three different hypothecation agreements with three different
bank/financial institutions, whose Branch Managers have been arrayed as
respondents 3 to 5 in the captioned main writ petition. To be noted, the
hypothecation agreements with these three different entities are qua said
trucks.
3. Writ petitioner is a Mini Bus Operator in Kanyakumari District
and he ventured into Lorry business besides operating passenger transport
vehicles. It is not necessary to delve into facts on these facets in great detail,
in other words it is not necessary to dilate on facts going into granular
details as the matter turns on a extremely narrow compass on another facet
of the matter.
4. The prayer in the captioned main writ petitioner is for issue of a
writ of mandamus. It is a prayer to mandamus the second respondent
(Jurisdictional Regional Transport Officer) to not to transfer the ownership
of said trucks to respondents 3 to 5. The prayer as it reads is for a mandamus
and it is to forbear the second respondent, i.e., Jurisdictional Regional
Transport Officer (RTO) from transferring ownership of said trucks to
respondents 3 to 5. It is further to be noted that respondents 3 to 5 are the
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WP(MD) No.21482 of 2021
three financial institutions/bank as alluded to supra.
5. The writ petitioner is admittedly a defaulter. This is clearly
articulated/admitted by the writ petitioner in paragraph 11 of the writ
affidavit which reads as follows:
'11. I respectfully submit that I purchased the
above said 3 vehicles under Hypothecation Agreement
from the Respondents No.3 to 5, after purchasing the
vehicle, I have paid the instalment without any default,
but due to the Covid-19 pandemic situation, the entire
business was heavy loss. Therefore, I unable to pay the
instalment in time. There is some default, now I
intended to close the business and also I settle the
entire the loan amount to the Respondent No.3 to 5. I
am trying to sell the above said vehicles best price in
the market, now the vehicles may be sold more than Rs.
1 Crore. If the vehicles sold best of price, I settle the
entire loan amount to the Respondents No.3 to 5, then I
become free without any loan, then I have peaceful life
for the remaining period without any demand or
torture from anybody. Therefore, I requested the
Respondents No.3 to 5 to give 6 months time I settle
the entire loan amount. The Respondents No.3 to 5
agreed but, all of sudden I received a letter from the 4th
Respondent dated 25.11.2021, it is a false one a vehicle
was taken repossession by them on 11.11.2021.”
[Underlining made by this court to supply emphasis,
highlight and for ease of reference]
6. In the light of admitted default by the writ petitioner qua
hypothecation of aforementioned three trucks, one of the financial
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WP(MD) No.21482 of 2021
institutions had issued a letter dated 25.11.2021 pertaining to one of the
three trucks and the same is as follows :
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WP(MD) No.21482 of 2021
7. Adverting to the aforementioned notice, learned counsel submits
that the financial institution, having given an opportunity to the writ
petitioner, to buy the truck by paying the balance cannot now go-ahead and
get the ownership of the trucks transferred in its name. Similar notices have
been issued by the other two entities is learned counsel's further say.
8. In his campaign in support of the forbearance mandamus that has
been sought for, notwithstanding very many averments in the writ affidavit
and notwithstanding several grounds that have been raised in the writ
affidavit, in the hearing learned counsel for writ petitioner made two
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WP(MD) No.21482 of 2021
pointed submissions and they are as follows:
a) Impending transfer which according to the writ
petitioner is in the anvil, is hit by Section 51(4) of 'the
Motor Vehicle Act 1988, (Act 59 of 1988)', {hereinafter
referred to as 'MV Act' for the sake of convenience and
clarity}.
b) In what according to the counsel for writ
petitioner is in identical circumstances, the Himachal
Pradesh High Court in Prakash Chand Methas's case
reported in AIR 1986 HP 38, had held that such transfers
are bad.
9. I now proceed to deal with the two submissions.
10. The first submission of the writ petitioner is predicated on Section
51(4) of MV Act and I deem appropriate to extract Sections 51(1) and 51(4),
I do so and the same read as follows:
51. Special provisions regarding motor
vehicle subject to hire-purchase agreement, etc.
—(1)Where an application for registration of a
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WP(MD) No.21482 of 2021
motor vehicle which is held under a hire-purchase,
lease or hypothecation agreement (hereafter in
this section referred to as the said agreement) is
made, the registering authority shall make an
entry in the certificate of registration regarding
the existence of the said agreement
(2) .........................................................
(3)...........................................................
(4) No entry regarding the transfer of ownership
of any motor vehicle which is held under the said
agreement shall be made in the certificate of
registration except with the written consent of the
person whose name has been specified in the
certificate of registration as the person with whom
the registered owner has entered into the said
agreement.
(5)................................................................
(6)................................................................
(7)................................................................
(8)................................................................
(9)................................................................
(10)................................................................
(11)...............................................................'.
11. According to the learned counsel for writ petitioner, transfer of
ownership of said trucks cannot be made without the consent of the owner
i.e., writ petitioner owing to section 51(4) of MV Act.
12. Learned counsel submits that the writ petitioner's name is shown
as the owner in the registration certificate and therefore there cannot be
transfer of ownership without the consent of the writ petitioner on the teeth
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WP(MD) No.21482 of 2021
of Section 51(4). To be noted photocopies of the registration certificates
have been placed before me as part of the case file.
13. Be that as it may, a careful perusal of the plain language in which
Sub Section (4) of Section 51 of MV Act is couched makes it clear that
transfer of ownership of any motor vehicle cannot be done except with the
written consent of the person whose name has been specified in the
certificate of registration as the person with whom the registered owner has
entered into 'said agreement'. To have clarity on what is 'said agreement' one
has to turn to sub section (1) of section 51. This means that the writ
petitioner is the registered owner and respondents 2 to 5, the financial
institutions/Bank are the institutions / persons whose names are specified in
registration certificates as persons with whom writ petitioner has entered
into said agreement. It is therefore clear that under section 51(4) of MV Act
what is required is written consent of Respondents 3 to 5 and not that of
writ petitioner as contended. In this view of the matter, it is necessary to
have a clear look at what the expressions 'said agreement' occurring is Sub
Section (4) means and the answer lies in Sub Section (1). A careful perusal
of Sub Section (1) makes it clear that said agreement, is a reference to a hire
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WP(MD) No.21482 of 2021
purchase, lease or hypothecation agreement between registered owner and
finance company/Bank/person. Therefore in my considered opinion, the
submission predicated on Sub Section (4) of Section 51 is flawed and it falls
flat on its face. Combined reading of Sub Sections (4) and (1) of Section 51
of MV Act make it clear that what is required is written consent of the
person whose name has been specified in the certificate of registration as
the person with whom the registered owner has entered into said agreement.
The rest of the matter turns on facts, to be noted it is also not the case of the
writ petitioner that he is not a defaulter. This takes me to the Himachal
Pradesh High Court judgment which has been pressed into service. Though
obvious, it is made clear that the judgment of another High Court would
only have persuasive value, nonetheless with due respects I perused the
judgment placed before me. That judgment of the Himachal Pradesh High
Court is clearly distinguishable on facts as that is a case where no objection
certificate from the financier had not been obtained and the transfer had
been effected. This factual aspect is articulated in one paragraph in the
judgment which reads as follows:
'Whereas as provided under Rules 3-22 (Sub-rules 1 to 6) the
ownership of any vehicle cannot be transferred without
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having N.O.C. from the financier, Whereas from the perusal
of record, no objection certificate from financier has not been
obtained and as such the entry in respect of ownership of
vehicle be transferred and entered in record of Registration in
the name of Sh. Hoshiar Singh.'
14. In any event, that case law talks about consent from financier and
therefore, in terms of interpretation of section 51(4) of MV Act, the same is
in tune and tandem with the view that is now being taken in this order by
this Court.
15. Be that as it may, a judgment has to be read in the context of the
fact setting of that case and this principle has been repeatedly reiterated and
more particularly in the celebrated Padma Sundara Rao case being Padma
Sundara Rao Vs. State of Tamil Nadu case reported in (2002) 3 SCC 533
which was rendered by a Hon'ble Constitution Bench owing to which it is
declaration of law, the relevant paragraph in Padma Sundara Rao case law
is paragraph 9 and the same reads as follows:
'9.Courts should not place reliance on decisions without
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WP(MD) No.21482 of 2021
discussing as to how the factual situation fits in with the fact
situation of the decision on which reliance is placed. There is
always peril in treating the words of a speech or judgment as
though they are words in a legislative enactment, and it is to
be remembered that judicial utterances are made in the setting
of the facts of a particular case, said Lord Morris in
Herrington Vs. British Railways Board (1972) 2 WLR 537.
Circumstantial flexibility, one additional or different fact may
make a world of difference between conclusions in two cases.'
Therefore, the Himachal Pradesh case law does not come to the aid of the
writ petitioner in any view of the matter.
16. As both the points on which the captioned writ petition was
argued or in other words, both the grounds on which the captioned writ
petition has been projected before me in the Admission Board are non
starters, I have no hesitation in holding that the captioned writ petition
deserves to be dismissed. This Court does so and therefore captioned main
writ petition is dismissed. Consequently captioned WMP is also dismissed.
There shall be no order as to costs.
06.12.2021
mnr
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WP(MD) No.21482 of 2021
Index : Yes/No
Internet : Yes /No
Note :
In view of the present lock down
owing to COVID-19 pandemic, a web
copy of the order may be utilized for
official purposes, but, ensuring that
the copy of the order that is presented
is the correct copy, shall be the
responsibility of the advocate /
litigant concerned.
To
1. The Regional Director,
The Reserve Bank of India,
Fort Glacis, Rajaji Salai,
P.B. No.40,
Chennai – 600 001.
2. The Regional Transport Officer,
Office of the Regional Transport Officer,
Marthandam,
Kanyakumari District.
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WP(MD) No.21482 of 2021
3. The Branch Manager,
Sri Ram Transport Finance Company Ltd.,
Marthandam,
Kanyakumari District.
4. The Branch Manager,
Sundaram Finance Ltd.,
Neiyattinkarai,
Trivandrum District,
Kerala State.
M.SUNDAR, J.
mnr
https://www.mhc.tn.gov.in/judis
WP(MD) No.21482 of 2021
W.P(MD)No. 21482 of 2021
and
WMP(MD). No.18048 of 2021
06.12.2021
https://www.mhc.tn.gov.in/judis
