CHANDRA BROTHERS Vs. STATE OF BIHAR
LAWS(PAT)-1979-9-16
HIGH COURT OF PATNA
Decided on September 03,1979

CHANDRA BROTHERS Appellant
VERSUS
STATE OF BIHAR Respondents


Referred Judgements :-

SARDAR SINGH KOLI V. SWASTIK FINANCIAL CORPORATION (P) LTD. [REFERRED TO]
RAM KRIPAL SINGH YADAV V. G. P. YADAV [REFERRED TO]
SARDAR TRILOK SINGH VS. SATYA DEO TRIPATHI [REFERRED TO]



Cited Judgements :-

HAFIZ SAMIM ALAM VS. STATE OF BIHAR [LAWS(PAT)-1995-9-87] [REFERRED]


JUDGEMENT

P.S.Sahay, J. - (1.)This application is directed against the order of the learned Sessions Judge dated 4-4-1979 by which he was directed the release of vehicle BHP - 5566 in favour of Opp. party No. 2 on furnishing bond.
(2.)In order to appreciate the point raised in this application, it is necessary to state some facts. The petitioner-Company is a financier of Kanpur and a hire-purchase agreement was entered into between the petitioner Company on one hand and opposite party No. 2 on the other regarding a Mini Bus BHP - 5566. A copy of the aforesaid agreement has been filed alongwith this application and marked Annexure 1. The opposite party No. 2 had to pay instalments and under clause V of the aforesaid agreement, if there was a default, the petitioner Company as financier was entitled to take possession of the Vehicle. There was a default in payment of the instalments for which an application under Section 20 of the Indian Arbitration Act was filed before the Subordinate Judge No. 11, Patna which gave rise to Title Suit No. 103 of 1978. In the aforesaid suit the learned Subordinate Judge by his order dated 10-8-1978 held that the Patna Court had no territorial jurisdiction to try the suit and the application was, therefore, ordered to be returned. It is stated in the petition that on 27-5-1978 one of the guarantors under the agreement (Annexure 1) Shri Baijnath Singh made over possession of the aforesaid vehicle to the petitioner-Company and it was kept in the custody of Ram Sanhai Singh of Nalanda Coach Body Builders, Ranchi Road, Bihar Sharif. An information to this effect was also filed before the Bihar Sharif police. Thereafter at the instance of oppsite party No. 2 the vehicle was seized by the police on 30-5-1978 and was taken away from the custody of Ram Sanhai Singh. According to the case of opposite party No. 2, the vehicle was taken away forcibly by the employees of the petitioner Company for which information was given to the Patna Police on 26-4-1978, vide Annexure-A of the application filed on behalf of opposite party No. 2 on 10-5-1979 for vacating the ad interim order of stay passed by this Court on 12-4-1979. Applications were filed before the Chief Judicial Magistrate, Bihar Sharif on behalf of opposite party No. 2 for the release of the vehicle, one on 31-7-1978 and another on 19-8-1978 because the vehicle was kept under the jurisdiction of the aforesaid Magistrate. A similar application was also filed on behalf of petitioner on 24-8-1978 for the release of the vehicle. The learned Chief Judicial Magistrate by his order dated 7-9-1978 ordered the Mini Bus in question to be released in favour of the petitioner Company on furnishing a bond of Rs 75,000/- with two sureties of the like amount. A bond was duly executed by petitioner no. 2 Ashfaq Ahmad on behalf of the petitioner Company on 8-9-1978 and the possession of the vehicle was accordingly taken on behalf of the petitioner Company and thereafter taken to Kanpur. The opposite party no. 2 filed a criminal revision before the Sessions Judge, Nalanda at Bihar Sharif which gave rise to Criminal Revison no. 183 of 1978. The learned Sessions Judge by his order dated 4-4-1979 allowed the application and set aside the order of the learned Chief Judicial Magistrate dated 7-9-1978 and directed that the vehicle in question be released in favour of opposite party no. 2 on furnishing a bond of Rs. 75,000/-. Being aggrieved by the aforesaid order, the petitioner Company alongwith one of its employees has moved this Court and the impugned order was stayed. Later an application was filed on behalf of opposite party no. 2 for vacating the order of stay in which it has been stated that the vehicle was always in his possession and it was the financier the petitioner Company, who took forcible possession of the same for which informations were lodged before the police. It has also been stated that the Chief Judicial Magistrate passed the order without hearing opposite party no. 2, who was a necessary party and that also on a date which was not fixed in the case.
(3.)Learned Advocate General appearing on behalf of the petitioner Company has contended that the police had never seized the vehicle and the petitioner Company got possession of the same through one of the guarantors under the terms and conditions of the agreement and, therefore, the learned Chief Judicial Magistrate was perfectly justified in releasing the vehicle in favour of the petitioner Company and the learned Sessions Judge has acted illegally in setting aside the aforesaid order.


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