ORDER
T.P.S. Mann, J.
1. One Saudagar Singh lodged FIR No. 331 dated 1.11.2002 at Police Station Dhuri Under Sections 420/467/468/471 and 120B, I.P.C., wherein he mentioned that he purchased one Maruti car of 800CC having Engine No. 3287722 and Chassis No. 2278746 from Rajinder Singh s/o Amrik Singh for a sum of Rs. 1,72,000/-, out of which, he gave an amount of Rs. 1,00,000/-to said Rajinder Singh in the presence of Davinder Singh and Sikandar Singh. The car had not yet been registered with the registering authorities. One Ranbir Singh had assured him that the papers of the car had been sent to Haryana for getting the vehicle registered. An assurance was also given that the papers of the car were in order and as and when the Registration Certificate was received, the same would be given to him. After three days, Ranbir Singh, Rajinder and Ranjit Singh met Saudagar Singh and gave him the Registration Certificate, as per which the registration number of the car was HR-09A-1538, which stood registered in the name of Amrik Singh s/o Mohan Singh. The chassis and the engine numbers were correctly mentioned in the said certificate of registration. Accordingly, Saudagar Singh paid the remaining amount of Rs. 72,000/-. Later on, the certificate of registration was transferred in the name of Saudagar Singh by D.T.O., Sangrur. In the meanwhile Saudagar Singh agreed to sell the car to Inderjit Sharma, which Inderjit Sharma struck a deal to sell the car to the present petitioner, namely, Narinder Kumar Singla. Accordingly, on the basis of an affidavit submitted by Saudagar Singh, the certificate of registration of the car in question was transferred in the name of the petitioner by Registering Authority, Patiala. During this process Saudagar singh came to know that the real registration number of the car in question was PB-13H-9386 and it stood registered in the name of Ranbir Singh s/o Harnek Singh. Further that the car was purchased by Ranbir Singh from Saini Motors, Jalandhar and was got financed from Punjab-Haryana Finance Limited, G.T. Road, Jalandhar. Saudagar Singh felt cheated that the car was sold to him by Ranbir Singh, Rajinder Singh and Ranjit Singh on the basis of the forged documents and accordingly, the aforementioned FIR was registered at Police Station, Dhuri.
2. During the investigation of the aforementioned FIR, the car in question was taken into possession by the police from the petitioner. An application was, thereafter, filed by the petitioner for the release of the car on Superdari on him. Similar application was filed by respondent No. 2, i.e. Punjab-Haryana Finance Leasing Limited, Jalandhar through its Field Inspector Atarn Parkash.
3. After holding that the vehicle in question stood registered in the name of the petitioner as per the registration certificate and further that the finance company could not take forcible possession of the car and had the remedy through Court, Sub-Divisional Judicial Magistrate, Dhuri vide an order dated 14.12.2002 allowed the application filed by the petitioner and released the car on superdari to him. The application filed by respondent No. 2 was, however, declined. In pursuance to the said order, the petitioner furnished surety bonds and gave the necessary undertaking. The car in question was released on superdari to the petitioner.
4. Respondent No. 2 challenged the order dated 14.12.2002 by filing a revision, which was accepted by Additional Sessions Judge, Sangrur vide an order dated 22.8.2003. The order passed by the trial Court releasing the car in question in favour of the petitioner was set aside. The finance company was found entitled to release of the car in question on superdari.
B. The aforementioned order passed by Additional Sessions Judge, Sangrur was challenged by the petitioner by filing a petition Under Section 482, Cr.P.C. The same was came up for preliminary hearing on 5.9.2003, when notice of motion was issued. The operation of the impugned order passed by Additional Sessions Judge, Sangrur was stayed till the final disposal of the petition.
6. While passing the impugned order, Additional Sessions Judge concentrated on the initial transaction of purchase of car in question by Ranbir Singh after getting It financed from respondent No. 2. Noticing that Ranbir Singh had not paid all the installments to the finance company from whom he got the vehicle financed, he did not be-come its absolute owner. Till the time the outstanding loan was not cleared, the finance company remained the owner of the vehicle. Reference was made to Ashok Leyland Finance Limited v. State of Haryana 2002 (3) RCR (Criminal) 551 and Ashok Leyland Finance Ltd. v. Ramesh Kumar 2002 (3) RCR (Criminal) 111 to conclude that hirer was owner for a limited purpose, but he was not an absolute owner and accordingly, the finance company was entitled to superdari. In this view of the matter, revisional Court accepted the revision filed by respondent No. 2, and set aside the order passed by the trial Court while granting superdari of the car in question to the petitioner.
7. At the time when the vehicle in question was taken into possession by the police during the investigation of FIR No. 331 dated 1.11.2002, the vehicle stood registered in the name of the present petitioner. It has been time and again held by Hon’ble Supreme Court that pending adjudication of the rival cLaims with regard to title of the vehicle in question, superdari be given to one, who is mentioned in the certificate of registration as the owner Rajendra Prasad v. State of Bihar 2002 (2) RCR (Criminal) 812 : 2001 Cri LJ 4946 and Manoj v. Shiram Tpt. Finance Ltd. 2002 (2) RCR (Criminal) 730 may be referred to in support of the above proposition. Para 2 of Rajendra Prasad (supra) is reproduced here-inbelow:
2. We are not deciding the question as to the title of the vehicle in dispute nor the correctness of the rival versions regarding the transactions relating to the vehicle. We do not want the vehicle to remain in the compound of the Police Station exposed to heat and cold because the automobile is likely to be lost to all in such situation. To avert this situation, we are inclined to entrust it temporarily to the appellant who is the ostensible name-holder in the registration certificate. The custody of the vehicle with the appellant will be on behalf of the Court and this arrangement is only till the stage when the Court, basses the order regarding disposal of the property on conclusion of the trial. We direct the trial Court to release the vehicle to the appellant on the following conditions.
8. The cLaim of respondent No. 2 was based on the hire-purchase agreement. It has been held in Tarun Bhargava v. State of Haryana 2002 (3) RCR (Criminal) 312 : AIR 2003 P & H 98 that even if there is any clause in the hire-purchase agreement that financier will have the right to take possession of the vehicle in case of default, such a clause was void:
B) In a loan agreement for financing goods on hypothecated basis, the creditor cannot forcibly repossess the hypothecated item, though he can enforce the security through the Court.
C) If a specific clause is inserted in an agreement authorizing repossession of a vehicle or any other goods by the hypothecatee, such a clause may be unconscionable, unless otherwise shown by the hypothecatee and such a clause Inserted in the present case is held to be void. In the present agreement, Clause 4 and Clause 7 permitting forfeiture of installments already paid will be deemed to be void.
9. The decision of Tarun Bhargava’s case (supra) was also referred to in para 2 of the impugned order passed by Additional Sessions Judge, Sangrur. After noticing the fact that there was distinction between loan agreement and hire-purchase agreement, the Court held that in case of goods purchased under the loan agreement, the goods could not be seized by the financier on account of non-payment of loan. However, In case of hire-purchase agreement, the position was stated to be otherwise.
In a case of Tarun Bhargava v. State of Haryana 2002 (3) RCR (Cri) 312 : AIR 2003 P & H 98, it was held that distinction between loan agreement and hire-purchase agreement is to be drawn in such like cases. In case of goods purchased under the loan agreement, for non-payment of loan, the goods cannot be seized by the financier. But if It is a case of hire-purchase agreement, the position would be otherwise.
10. The observation made by the revisional Court was not In consonance with the decision given in Tarun Bhargava’s case (supra). In fact what was held in the said judgment was to the contrary. In case of hire-purchase agreement, the goods could not be seized by the financier in case the installments were not paid. In case, there was any such condition in the hire purchase agreement, the same was held in Tarun Bhargava’s case (supra) to be unconscionable.
11. Resultantly, I am of the view that the impugned order passed by the Additional Sessions Judge, Sangrur, while granting superdari of the car in question in favour of respondent No. 2, suffers from illegal conformity and the same cannot be allowed to sustain. Accordingly, the petition is accepted. Impugned order passed by Additional Sessions Judge, Sangrur on 22.8.2003 is set aside. Consequently, the order passed by Sub-Divisional Judicial Magistrate, Dhuri on 14.12.2002, releasing the car in question on superdari to the petitioner, is restored and maintained.