CR No. 6978 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No. 6978 of 2011 Date of Decision: 15.11.2011 Sapinder Singh ....Petitioner. Versus Aman Finance Company and another ...Respondents. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. Arun Jindal, Advocate for the petitioner. AJAY KUMAR MITTAL, J. 1. The petitioner who had purchased the motorcycle from defendant No.1-respondent No.2 which was hypothecated with defendant No.1 during the subsistence of hypothecation having been asked by the trial court to return the motorcycle make Bajaj CT 100, bearing registration No. PB/28B/9751, Model 2005 on account of non- payment of outstanding dues of defendant No.1 to defendant No.2, has approached this Court by way of present petition. 2. Briefly, the facts necessary for adjudication of the present petition may be noticed. The plaintiff-petitioner filed a suit for declaration against the defendants-respondents to the effect that he was owner in possession of motorcycle Bajaj CT 100, bearing registration No. PB/28B/9751 and for directing defendant No.1 to get the registration of the above said motorcycle transferred in his name and to deliver the registration passbook to him. The defendant- CR No. 6978 of 2011 -2- respondent No.1 contested the said suit by filing a written statement and counter claim. It was prayed that a decree be passed for the recovery of mesne profits of Rs.25,000/- for illegal and unauthorized use of the motorcycle by respondent No.2 along with pendent lite and future interest and directing defendant No.1 to hand over the vehicle in question to the plaintiff. The petitioner-plaintiff filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure for interim injunction restraining the respondents-defendants from taking illegal possession/snatching the above said motorcycle from the plaintiff either by themselves or with the help of their agents, attorneys or servants. The trial court vide order dated 6.2.2010 allowed the application filed by the plaintiff and restrained respondent No.1-Aman Finance Company from taking the possession of the motorcycle illegally till the disposal of the case. By the said order, the plaintiff was also restrained from alienating or changing any of its spare part without intimation to the court. Defendant No.1 filed an appeal against the said order before the appellate court. The appellate court vide order dated 27.5.2011 allowed the appeal and directed the plaintiff to hand over the possession of the motorcycle to defendant No.1. Hence, the present revision petition. 3. I have heard learned counsel for the petitioner. 4. On an application having been filed by the finance company-defendant No.2 seeking possession of the vehicle on account of non-payment of outstanding loan amount, the same was allowed by the appellate court with the observations that the vehicle had been hypothecated in favour of defendant No.2 seeking financial assistance and a schedule of repayment of loan was not honoured by the borrower. CR No. 6978 of 2011 -3- Further, the borrower had sold the vehicle which was hypothecated against consideration. In such a situation, the plaintiff would not get valid title and retain the motorcycle. The relevant observations recorded by the appellate court read thus:- “This Court is in most faithful submission to the judgment so referred to herein above, but still facts of the case in hand need to be viewed in broader aspect. It is admitted case of the plaintiff himself that defendant No.1 had hypothecated the Motorcycle in favour of defendant No.2 against financial assistance and that financial assistance has not been repaid by him as yet. It is not merely the case where the borrower has not been able to honour schedule of repayment of loan but it is a case where the borrower has passed on hypothecated vehicle further against receipt of some consideration. Mere agreement of sale or execution of an affidavit by defendant No.1 in favour of plaintiff does not confer title in the Motorcycle upon the plaintiff. No doubt, that defendant No.2 cannot employ muscle men to take possession of the Motorcycle from the plaintiff still first lien of defendant No.2 over the Motorcycle, hypothecated property has to be acknowledged having flown from a contract where under defendant No.1 had obtained pecuniary benefit. Plaintiff has no right to retain the Motorcycle in his possession CR No. 6978 of 2011 -4- against wishes of defendant No.2. He is not entitled to the injunction prayed for yet since second defendant No.2 is not to be permitted to take forcible possession of the Motorcycle and the plaintiff claims himself to be law abiding citizen, he is directed to himself hand over possession of the Motorcycle, ibid, to defendant No.2 within one month from today where after the appellant, who has come before the learned trial court with a counter claim, be got delivered possession of the motorcycle by the ld. trial court itself by taking recourse to all processes available under the law. With this modification in the impugned order the appeal is disposed of.” 5. No illegality or perversity could be pointed out by the learned counsel for the petitioner in the aforesaid finding recorded by the appellate court which may warrant interference by this Court under the revisional jurisdiction. 6. Accordingly, there is no merit in the revision petition and the same is hereby dismissed. November 15, 2011 (AJAY KUMAR MITTAL) gbs JUDGE