Challenge
in this appeal is to the order passed by
a learned Single Judge of the Punjab and
Haryana High Court dismissing the Civil
Revision filed under Section 115 of the
Code of Civil Procedure 1908 (in short the
'Code').
The background facts in a nutshell are as
follows:
Under a Hire-Purchase Agreement executed
between the appellant (hereinafter referred
to as the 'financier') and the Respondent
No. 1 (hereafter referred to as 'Hirer')
possession of truck No. HR 46C 3689 was
handed over to the Hirer subject to compliance
of the terms and conditions of the agreement.
As per the terms and conditions stipulated
in the agreement, the Hirer was to repay
the total financed amount of Rs. 9,24,000/-
in 33 monthly installments of Rs. 28,000/-
each. As per the agreement, the first installment
was payable on 25.10.2000 and the last installment
on 25.6.2003. In case of default in making
payment of the monthly installment, the
Hirer was liable to pay delay charges. Clause
10 of the agreement, which is relevant for
the purpose of this appeal reads as follows:
"In case the Hirer shall during the continuance
of this Agreement do or suffer any of the
following acts or things, viz. either:
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then,
on the occurrence of any such event, the
right of the Hirer under this Agreement
shall forthwith stand determined ipso facto
without any notice to the Hirer and all
the installments previously paid by the
Hirer shall be absolutely forfeited by the
Owner who shall thereupon be entitled to
enter into any house or place where the
said vehicle may then be, remove and retake
possession of the same and sue for all installments
due and for damage for breach of the Agreement
and for all the costs of retaking possession
of the said vehicle and all costs occasioned
by the Hirer's default."
According to the financier, there was default
in making payment of the monthly installments
and the Hirer was requested to clear the
amounts due by several letters. In spite
of several requests/demands, the Hirer did
not pay the amount due and as on 27.8.2002
he was in arrears of Rs. 1,34,000/- on account
of monthly installments due excluding other
charges payable on account of delay in making
payment. Accordingly, the appellant repossessed
the vehicle on 27.8.2002. According to the
financier, in view of the violation of the
terms by the Hirer, the agreement stood
terminated. Therefore, by registered letter
dated 27.8.2002, the financier called upon
the Hirer to pay a sum of Rs. 4,27,485/-,
which was the amount due. The notice stipulated
that the amount was to be paid within 10
days from the date of the receipt of the
letter. The Hirer did not make any payment
and on the other hand made a false complaint
to the Reserve Bank of India (in short 'RBI'),
and filed a civil suit in the Court of Civil
Judge. Senior Division, Sonepat for declaration
with consequential relief and permanent
injunction along with mandatory injunction.
In the said civil suit, the Hirer also filed
application under Order XXXIX Rules I &
2 read with Section 151 of the Code praying
for interim relief. On receipt of the summons,
the appellant filed written statement. The
matter was taken up on 13.9.2002. A prayer
was made for an adjournment of the date
as learned counsel for the appellant had
met with an accident. The matter was adjourned
for arguments on the said application on
27.09.2002. But at the same time, learned
Civil Judge directed appellant to release
the vehicle subject to deposit of the balance
of installments along with interest amounting
to Rs. 1,61,504/-. The said order was the
subject matter of challenge in Civil Revision
No. 4680/2002. Initially, the High Court
had granted stay of the operation of the
order. The Hirer filed an application for
vacation of the order of stay. By the impugned
order the High Court dismissed the Civil
Revision upholding the order passed by the
Trial Court.
According to learned counsel for the appellant,
the order passed is clearly unsustainable.
The suit filed was not maintainable. While
passing order for release, the trial Court
did not take note of the fact that according
to the appellant the arrears were much higher
than the defaulted installments. It was
not considered by the Trial Court as to
how the appellant would recover its dues
if the suit was ultimately dismissed.
Learned counsel of the Respondent, on the
other hand, submitted that the re-possession
as taken by the appellant was clearly contrary
to law. Merely because the Hirer had signed
the agreement which permitted re-possession
that would not give arbitrary power to the
financier to take possession of the vehicle.
It was pointed out that in several cases,
different High Courts have deprecated the
practices of the financers taking possession
of the financed vehicles.
By order dated 16.11 .2004 while issuing
notice interim, stay was granted subject
to the opposite party-Respondent depositing
Rs. 2,50,000/- with the Registry of this
Court within four weeks without prejudice
to the claims involved. Admittedly, the
amount has been deposited.
So far as the question of re-possession
is concerned, it is clearly permissible
in terms of clause 10 of the Hire purchase
agreement referred to above. What ultimately
is to be decided by the Trial Court in the
suit is the amount to which the appellant
is entitled to. Learned counsel for the
appellant has submitted that without taking
note of the defaulted amount, which according
to him is in the neighbourhood of Rs. 10
lakhs, the vehicle was directed to be released
on payment of the defaulted installments.
The said amount has also been deposited.
But at the same time it was imperative for
the High Court to ensure that in the event
the suit is dismissed and the Hirer is liable
to pay the amount, how the same is secured.
It is not disputed that the vehicle if not
used would lose its value. In the peculiar
circumstances of the case, we direct that
in case the Respondent nO.1-Hirer pays the
appellant a sum of Rs. 1,50,000/- in addition
to the amount already deposited within 10
days from today, the vehicle shall be released.
The Respondents shall file an undertaking
before the Trial Court that in the event
of non-success, the vehicle shall be returned
to the financier, unless the Trial Court
fixes some other terms. It is made clear
that we have not expressed any opinion on
the merits of the case which shall be decided
in accordance with law.
Before we part with the case, it is relevant
to take note of submission of learned counsel
for the Hirer that in several cases, different
High Courts have passed orders regarding
the right to re-possess where the High Courts
have entertained writ petitions including
writ petitions styled as PIL on the question
of right of financiers to take possession
of the vehicle in terms of the agreement.
It is stated that directions have been given
to the RBI for framing guidelines in this
regard. If it is really so, the orders prima
facie have no legal foundation, as virtually
while dealing with writ petitions subsisting
contracts are being re-written. It is still
more surprising that petitions styled as
PIL are being entertained in this regard.
Essentially, these are matters of contract
and unless the party succeeds in showing
that the contract is unconscionable or opposed
to public policy, the scope of interference
of writ petitions in such contractual matters
is practically non-existent. If agreements
permit the financier to take possession
of the financed vehicles, there is no legal
impediment on such possession being taken.
Of course, the Hirer can avail such statutory
remedy as may be available. But mere fact
that possession has been taken cannot be
a ground to contend that the Hirer is prejudiced.
Stand of learned counsel for the Respondent
is that convenience of the Hirer cannot
be overlooked and improper seizure cannot
be made. There cannot be any generalisation
in such matters. It would depend upon facts
of each case. It would not be therefore
proper for the High Courts to lay down any
guideline, which would in essence amount
to variation of the agreed terms of the
agreement. If any such order has been passed,
effect of the same shall be considered by
the concerned High Court in the light of
this judgment and appropriate order shall
be passed.
The appeal is allowed to the aforesaid
extent. No orders as to costs.
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