IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 30TH MAY 2008 / 9TH JYAISHTA 1930 WP(C).No. 18651 of 2007(U) ------------------------------------- PETITIONER: ------------------- B. SUSHEEL KUMAR, S/O. BALAKRISHNAN, PROPRIETOR, M/S. SOLVE MARKETING, PUNALUR, KOLLAM. BY ADV. SRI.JOHNSON GOMEZ SRI.S.BIJU (KIZHAKKANELA) RESPONDENTS: ----------------------- 1. THE JOINT REGIONAL TRANSPORT OFFICER, OFFICE OF THE JOINT RTO, PUNALUR, KOLLAM. 2. THE MANAGING DIRECTOR, M/S. PRAKASH LEASING LTD., REGISTERED OFFICE NO.7(19), 2ND FLOOR, KODAVA SAMAJA BUILDING, VASANTH NAGAR, BANGALORE-560052. BY GOVT. PLEADER SRI. K.V.MANOJKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 18651/2007 APPENDIX PETITIONER'S EXHIBITS: EXT.P1. COPY OF THE REGISTRATION CERTIFICATE WITH RESPECT TO THE PETITIONER'S VEHICLE BEARING REGISTRATION KL 2D/3494 BY THE R1. EXT.P2. COPY OF THE LETTER NO. SM/PLL/412/1999 DT. 17/09/99 BY THE PETITIONER TO THE R2. EXT.P3. COPY OF THE LETTER DT. 24/09/99 ISSUED BY THE MAMAGER RECOVERIES OF THE R2 TO THE PETITIONER. EXT.P4. COPY OF THE LEGAL NOTICE NO. 29/2006 DT. 6/5/2006 TO THE R2. EXT.P4A. COPY OF THE POSTAL RECEIPT AND THE POSTAL ACKNOWLEDGEMENT CARD RECEIVED BY THE R2. EXT.P5. COPY OF THE JUDGMENT DT. 10/10/2006 IN WPC NO. 22613/2006 OF THIS COURT. EXT.P6. COPY OF THE NOTICE NO. 21523/06/PLR DT. 18/10/2006 BY THE R1 TO THE R2. EXT.P7. COPY OF THE ORDER NO. 21523/2006 DT. 27/10/2006 BY THE R1. EXT.P8. COPY OF THE LETTER DT. 09/02/2007 BY THE R1 TO THE PETITIONER. EXT.P9. COPY OF THE REPRESENTATION DT. 13/2/2007 BY THE PETITIONER BEFORE THE R1. EXT.P10. COPY OF THE LETTER DT. 20/2/2007 BY THE R1 TO THE PETITIONER. RESPONDENT'S EXHIBITS: NIL. True copy Tga ANTONY DOMINIC, J. = = = = = = = = = = = = = = = = = W.P.(C) No. 18651 OF 2007 U = = = = = = = = = = = = = = = = = Dated this the 30th May, 2008 J U D G M E N T The issue raised in this writ petition is regarding the endorsement of cancellation of hypothecation in respect of a goods vehicle owned by the petitioner. 2. According to the petitioner, the vehicle KL 2B/3494 was purchased under a hire purchase agreement executed with the 2nd respondent. It is the petitioner's case that he has cleared the entire amount due to the 2nd respondent and inspite of it, the 2nd respondent has not issued consent for renewal of permit and thereupon the petitioner had to approach this Court by filing W.P.(C) No. 22613/06. That writ petition was disposed of by Ext. P5 judgment directing that the application of the petitioner for renewal of the permit will be accepted and considered by the authority with notice to the petitioner and the 2nd respondent. 3. It is stated that following the judgment, Ext. P6 notice was issued by the 1st respondent requiring the petitioner and the 2nd respondent financier to appear before him in connection with the W.P.(C) No. 18651OF 2008 -2- petitioner's application for renewal of permit. Petitioner submits that despite the notice issued, the 2nd respondent did not appear and thereafter the 1st respondent renewed the permit by Ext. P7 proceedings for a period of 5 years on the strength of which the vehicle has been operated. In so far as his application for cancellation of hypothecation is concerned, the 1st respondent has replied by Ext. P8 that the petitioner should produce Form 35 under Rule 61(II) of the Central Motor Vehicle Rules, 1989 along with the consent letter and the prescribed fee in order to consider the said application. According to the petitioner, despite notices and intimations, the 2nd respondent is declining to appear before the authorities or give consent as demanded and therefore insistence of consent, renders it impracticable for the petitioner to get the hire purchase cancelled by the 1st respondent. It is in these circumstances the writ petition has been filed. 4. In this writ petition also, despite service of notice the 2nd respondent has not entered appearance. Therefore, the averment that the petitioner has cleared the entire hypothecation dues stands rebutted and therefore I should accept the same as correct. In view of the deliberate absence of the 2nd respondent both before the statutory authority and before this Court, upholding denial of W.P.(C) No. 18651OF 2008 -3- cancellation of the hire purchase for want of consent from the 2nd respondent who has chosen not to contest the matter will be denial of justice to the petitioner. Therefore, I do not think that in the facts of this case, it will be proper for the authorities to insist on the production of the consent letter from the 2nd respondent. 5. The learned Govt. Pleader points out that it is only for want of consent letter from the financier that the application was not considered. As already stated in the peculiar facts of this case, I think, the 1st respondent should consider the petitioner's application for cancellation of the hypothecation without insisting on production of the consent letter from the 2nd respondent. 6. Therefore, the writ petition is disposed of directing that the 1st respondent should consider the application made by the petitioner for cancellation of a hypothecation, without insisting on consent letter from the 2nd respondent, but, however, subject to compliance with the other statutory requirements. Petitioner will be free to make an application in the manner as indicated above in which case the 1st respondent will consider the same and pass appropriate orders thereon. ANTONY DOMINIC JUDGE jan/-