TaxTMI 
TaxTMI 
2020 (12) TMI 141
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.... of the common order dated 28.11.2018, , passed by learned Special Judicial Magistrae 1st Class, Kamrup (M) at Guwahati, in Complaint Case No.3332/2018. 2. Petitioner Madhab Kumar Das of Criminal Petition No.1135/2019, by obtaining loan from the Punjab National Bank (in short 'the PNB'), petitioner in Criminal Petition No.61/2020, purchased four vehicles for commercial purpose. Petitioner Madhab Kumar Das entered into a hypothecation deed with the PNB and also purchased one Toyota Fortuner vehicle bearing registration No.AS 01 BQ 4777, after sanctioning of the loan from the PNB and the loan amount was Rs. 22,59,000/-. As per the hypothecation deed (Clause-13), it shall be lawful for the PNB to take repossession of the hypothecated vehicl....
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....borrower as a result of which on 24.05.2018, the PNB through its agent seized the Toyota Fortuner vehicle bearing registration No.AS 01 BQ 4777 from the custody of the petitioner, in terms of the agreement, entered into between the parties and informed the petitioner that in order to get back the possession of the vehicle, he is to deposit a sum of Rs. 19,34,930/-, as per the valuation certificate and the same was also not responded. Thereafter the PNB filed an application under Section 19 of the Recovery of Debts and Bankruptcy Act, 1993 on 29.06.2018, in the Debts Recovery Tribunal (DRT), Guwahati, to recover all the dues amounting to Rs. 78,79,978.34 (for four vehicles), which was registered as O.A. No.328/2018 and the petitioner is cont....
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....oing so the bank shall immediately give back the possession of the vehicle to the petitioner. (ii) That the petitioner shall regularly make the Equated Monthly Instalment and to that effect the petitioner shall furnish a bond to the bank. (iii) That the petitioner shall not transfer the vehicle by whatever means while remaining the vehicle in his custody. (iv) In case the petitioner fails to pay three Equated Monthly Instalment at a stretch, the bank will have right to resume the possession of the vehicle. 5. The petitioner did not comply with the above order and instead filed a revision petition against the order dated 28.11.2018, before the Court of learned District & Sessions Judge, Kamrup, vide Criminal Rev....
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....higher purchaser has the right of custody of the vehicle until he fulfils the condition of higher purchase agreement and in view of the substantial dues, the direction of the trial Court to release the vehicle, only on payment of Rs. 6 lakhs is not sufficient to meet the liability towards the Bank. It has also been contended that the petitioner Madhab Kumar Das clandestinely assured regular payment since long and on earlier occasion, one hypothecated Audi vehicle was also given to him after re-possession but he did not pay the overdue. The PNB has also prayed to set aside the impugned order passed by the learned trial Court by allowing the PNB to sale the said vehicles to recover the amount dues to the bank. 7. I have heard the submissio....
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.... is merely a trustee/ bailee and the ownership remains with the Bank, till full recovery of the loan amount. The said proposition has been asserted by the Hon'ble Apex Court in Anup Sarmah vs. Bhola Nath Sharma, reported in (2013) 1 SCC 400, wherein it has been held that in an agreement of hire purchase, purchaser remains merely a trustee/bailee on behalf of financier/financial institution and ownership remains with latter. In case vehicle is seized by financier, no criminal action can be taken against him as he is repossessing goods owned by him, for violation of conditions of higher purchase agreement/ defaulted in making payment, etc. 10. In the given case, the vehicle in question was possessed by the Bank after due procedure, as the ....
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....e order dated 28.11.2018, to accommodate the petitioner/borrower to take the interim custody of the vehicle on certain payment and other conditions. Such an order was passed even after objection raised by the Bank, as huge amount of dues was pending as against the borrower. This is more particularly so as because the matter was sub-judice before the DRT, Guwahati, for recovery of outstanding dues and the possession of the vehicle. The petitioner/borrower who is a willful defaulter, after repeated assurance/promise cannot be given indulgence again and again to repay his loan and the Bank is at liberty to go for legal recourse which they have already adhered to, by filing application before the DRT. 13. The prayer of the petitioner Madhab ....