RE-POSSESSION OF VEHICLES UNDER HIRE PURCHASE
AGREEMENTS
Supreme court once again says while deciding the matter of Suryapal Singh V Siddha Vinayak Motors &
others SLP[Civil]No.5302/2012 decided on 21.02.2012
“under the hire purchase agreement ,it is the financer who
is the owner of the vehicle and the person who takes the loan retains the
vehicle only as a bailee/trustee,therefore taking possession of the vehicle on
the ground of non-payment of the instalments has always been upheld to be a
legal right of the financer ”
In the above case, a petition was preferred against the order of
National commission dt. 19.10.2011 wherein courts below had granted
compensation to the petitioner.The facts of the case are as hereunder
The Petitioner availed of loan from Respondent No. 2 (OP No. 2
before the District Forum) for this purpose. According to the Complainant, he
left his vehicle at the premises of Respondent No. 1 for servicing. The
servicing was not carried out for one reason or the other and the Complainant
finally found that Respondent No. 1 had somehow handed over his vehicle to
Respondent No. 2 without any intimation to him. Alleging deficiency in service
on the part of Respondent No. 1 in handing over his vehicle to Respondent No. 2
without his permission, the Complainant sought various reliefs before the
District Forum. The complaint was opposed by both the OP's with OP No. 1
claiming that Opposite Party No. 2 repossessed the vehicle from the premises of
Opposite Party No. 1 because the Complainant could not be located. Opposite
Party No. 2 on the other hand, pleaded that it repossessed the vehicle because
of the Complainant's repeated defaults in payment of monthly instalments of
loan and interest. After considering the pleadings and evidence brought on
record, the District Forum passed order for compensation ,interest and also
return of re-possessed vehicle making both the OP’s liable
An appeal was preferred by the petitioner for
enhancement of compensation to the Madhya Pradesh state commission, Bhopal (in
short, 'the State Commission') which was dismissed ,a revision petition
before national commission also confirm district forum order and dismissed the
revision petition
Now the legal question before us is as to
1.
Whether a financer becomes an
owner of the vehicle in case of default in making loan instalments by the
purchaser of the vehicle on hire purchase basis.
2. Whether
re-possession of vehicle by financer is an offence amounting to theft
3. Whether
possession of vehicle by financer is an offence amounting to criminal breach of Trust Or Cheating
In M/s Damodar Valley Corporation vs. State of
Bihar SC ,21 November, 1960
“Ordinarily, a contract of hire purchase confers no title on
the hirer, but a mere option to purchase on fulfilment of certain conditions.
But a contract of hire purchase may also provide for the agreement to purchase
the thing hired by deferred payments subject to the condition that title to the
thing shall not pass until all the instalments have been paid.”
Further in Charanjit Singh
Chadha And Ors. Vs Sudhir Mehra On 31 August, 2001 Supreme Court Of India Noted
“. Though in India the Parliament has passed a Hire Purchase Act,
1972, the same has not been notified in the official gazette by the Central
Govt. so far. An initial notification was issued and the same was withdrawn
later. The rules relating to hire purchase agreements are delineated by the
decisions of higher courts. There are series of decisions of this Court
explaining the nature of the hire purchase agreement and mostly these decisions
were rendered when the question arose whether there was a sale so as to attract
payment of tax under the Sales Tax Act. .”
It is further observed “the owner re-possessing the vehicle
delivered to the hirer under the hire purchase agreement will not amount to
theft as the vital element of 'dishonest intention' is lacking. The element of
'dishonest intention' is an essential element to constitute the offence
of theft."Dishonestly"—is Whoever does anything with the intention of
causing wrongful gain to one person or wrongful loss to another person, is said
to do that thing "dishonestly".
In the matter of Sardar Trilok Singh & Ors. vs. Satya Deo Tripathi AIR 1979SC
850 it was observed by the honourable court was of a clear view that
it cannot be a case of criminal offence if vehicle is re-possessed by he
financer. On the well-settled principles of law, the criminal proceeding ought
to have been quashed by the High Court in exercise of its inherent power. The
dispute among the paties can purely be of a civil nature even assuming the
factsof re-possession are substantially correct.
According to the law laid down in the case of In K.A. Mathai & Anr. vs. Kora Dibbikutty
& Anr.1996(7)SCC212 .The hire-purchase agreement in law is an executory contract of
sale and confers no right in rem on hire until the conditions for transfer of
the property to him have been fulfilled. Therefore, the re-possession of goods
as per the term of the agreement may not amount to any criminal offence.In that
particular case , the financier took possession of the bus from the complainant
with the aid of the appellants. It cannot thus be said that the appellants, in
any way, had committed the offence of theft and that too, when criminal
or dishonest intention could not be pin-ponted.
Similar views were expressed earlier in Instalment Supply (Pvt.) Ltd. & Anr. vs.
Union of India & Ors. ; and reiterated in Sundaram Finance Ltd. vs. State
of Kerala &OTHERS AIR1966SC1178,Smt Lalmuni Devi V Stse Of Bihar
&Others 1(2001)SLT 26
14. It is also to be noticed that learned author R.M. Goode, in his book Hire Purchase Law
& Practice (Second Edn.) has observed as follows at page 846:-
"It would seem that so long as the hirer is in possession of
the goods they belong to him for the purpose of the Act [The Theft Act, 1968] even
though his possession is unlawful, e.g. because the hire-purchase agreement has
come to an end. If the owner has an enforceable right to possession then he
will not be guilty of theft in seizing the goods”
The above discussion in the light of cited cases clearly spells
out that financer’s act of re-possession of a vehicle is not an illegal act
amounting to criminal proceedings against him .However the procedure is to be
followed as stipulated in the agreement,.i.e. giving proper notice of the
default to the borrower before taking such steps giving him an
opportunity to rectify the default.
Dr Prem Lata
MEMBER CONSUMER COURT
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