High Court of KeralaSingle Judge2015-04-08Original Petition disposed of.

M/S. INDUS IND BANK LTD. v. Joint Regional Transport Officer, Sub Regional Transport Office, Kothamangalam & Mrs. Shibi Mathew

Case / Petition Number:W.P.(C).No.31756 of 2014 (T)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2015-04-08
Court Decision / Holding: The Original Petition is disposed of. The Registering Authority is to consider the application under Section 51(5) of the MV Act within two months from the date of this judgment and proceed to transfer the RC to the petitioner if satisfied of the financier’s case after hearing the objections raised by the 2nd respondent. The parties shall appear before the Registering Authority on 21.04.2015 for appropriate proceedings. If the 2nd respondent fails to appear, the Registering Authority shall decide the issue and pass final orders within the stipulated period.
Final Disposition: Original Petition disposed of.

Parties to the Case

Appellants / Petitioners

M/S. Indus Ind Bank Ltd.

Respondents

Joint Regional Transport Officer, Sub Regional Transport Office, Kothamangalam
Mrs. Shibi Mathew, W/o. Mathew

Legal Representation & Advocates

Counsels for Petitioners

• G. Hariharan
• Praveen H.

Counsels for Respondents

• Sri R. Ranjith (Government Pleader)
• Sri Sinu G. Nath
• Sri S.M. Rajeevan

Case Synopsis & Summary

This writ petition, filed by M/S Indus Ind Bank Ltd. (financier) before the Kerala High Court, seeks a duplicate Registration Certificate (RC) for vehicle KL-44-7108. The vehicle was purchased by the 2nd respondent under a Hire Purchase Agreement, with the financier endorsed in the RC under Section 51 of the Motor Vehicles Act (MV Act). The 2nd respondent defaulted on payments, leading to an arbitration award (Exhibit P2) against him. The petitioner had already obtained an order from the Madras High Court to seize the vehicle and the vehicle was taken into possession in 2010. The financier continued to possess the vehicle for about four and a half years and applied under Section 51(5) of the MV Act for transfer of registration, seeking to have the RC in the financier’s name. The 2nd respondent contested, claiming illegality in the possession, arguing actions under the SARFAESI Act (Section 13(2)) and alleging the possession may have been obtained by an Advocate Commissioner impersonator. The court examined a Division Bench decision in Sakthi Finance Ltd. v. T.C. Anilkumar to interpret 51(5) and held that the Registering Authority must consider objections, and that transfer can be ordered if the financier shows default and satisfies 51(5). The court directed the Registering Authority to decide within two months and dispose of the petition accordingly, with appearance fixed for 21.04.2015.

Provisions of Law Cited

Section 51 of the Motor Vehicles Act, 1988 (particularly Section 51(5))Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner-bank contends that Section 51(5) of the MV Act contemplates transfer of registration to the financier upon a default by the registered owner, especially where the financier has possession for an extended period and evidence of default exists through an arbitration award (Ex. P2). It asserts the Registering Authority must consider the application (Ex. P1) and grant transfer unless objections are made, which, once raised, must be adjudicated within a short, statutory period. The bank relies on the Sakthi Finance decision to support the position that the Registrar must act upon 51(5) and that possession by the financier substantiates the case for transfer.

Contentions of Respondents

The 2nd respondent argues that possession was not lawful and was obtained in violation of due process under SARFAESI (Section 13(2)) and by an Advocate Commissioner impersonator, challenging the validity of the possession and seeking due process through CJM or SARFAESI channels. He asserts pending suits and questions the timing of the possession and the High Court of Chennai’s order. The respondent submits that Section 51(5) cannot override proper procedures and that the matter should be examined with caution, given the long period of possession and earlier dismissal of related writ petitions.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sakthi Finance Ltd. v. T.C.Anilkumar	2003 (2) KLT SN 90 (Case No.118)	Positive	The judgment cites Sakthi Finance to illustrate that Section 51(5) requires consideration of objections by the Registering Authority and supports transfer of registration where the financier has a valid default-based claim, aligning with the decision’s reasoning.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT:- THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN WEDNESDAY, THE 8TH DAY OF APRIL 2015/18TH CHAITHRA, 1937 ## W.P.(C).No.31756 of 2014 (T) ------------------------------------------------------ PETITIONER(S):- ------------------------ M/S. INDUS IND BANK LTD., HAVING ITS REGIONAL OFFICE AT 'RAMA BHAVAN', PARUTHELI PALAM, TOLL JUNCTION, EDAPALLY, KOCHI-682024, REPRESENTED BY ITS LEGAL EXECUTIVE AJAY M. BY ADVS.SRI.G.HARIHARAN SRI.PRAVEEN.H. RESPONDENT(S):- ---------------------------- 1. JOINT REGIONAL TRANSPORT OFFICER, SUB REGIONAL TRANSPORT OFFICE, KOTHAMANGALAM, PIN-686691. 2. MRS.SHIBI MATHEW, W/O.MATHEW, PARAKKATTU HOUSE, KADAVOOR P.O., KOTHAMANGALAM, PIN-686691. R1 BY GOVERNMENT PLEADER SRI.R.RANJITH. R2 BY ADVS. SRI.SINU.G.NATH SRI.S.M.RAJEEVAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-04-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- W.P.(C).NO.31756 OF 2014 ## **APPENDIX** ## PETITIONER'S EXHIBITS:- -------------------------------------EXT.P1 TRUE COPY OF THE APPLICATION DATED 30.08.2010 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT FOR ISSUANCE OF FRESH REGISTRATION CERTIFICATE. EXT.P2 TRUE COPY OF THE AWARD MADE IN ACP.NO.285/2010 DATED 20.08.2010 PASSED BY THE ARBITRATOR AGAINST THE 2ND RESPONDENT. EXT.P3 TRUE COPY OF THE NOTICE OF HEARING DATED 11.01.2012 ISSUED BY THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS:- ---------------------------------------EXT.R2(a) TRUE COPY OF THE REQUEST LETTER DATED 9.3.15 FOR COPY OF HYPOTHECATION AGREEMENT. EXT.R2(b) TRUE COPY OF THE NOTICE DATED 23.04.2010 ISSUED UNDER SECTION 13(2) OF THE SARFAESI ACT, 2002. EXT.R2(c) TRUE COPY OF THE SPOT NOTICE ISSUED BY THE ADVOCATE COMMISSION TAKING POSSESSION OF THE VEHICLE. EXT.R2(d) TRUE COPY OF EP.NO.618/2012. EXT.R2(e) TRUE COPY OF THE OBJECTION FILED BEFORE THE 1ST RESPONDENT. [ true copy ] vku/ K. Vinod Chandran, J --------------------------------------W.P.(C).No.31756 of 2014-T -------------------------------------Dated this the 08[th] day of April, 2015 ## **JUDGMENT** The petitioner is before this Court seeking issuance of a duplicate Registration Certificate for the vehicle bearing registration No.KL-44-7108. Admittedly the said vehicle was purchased by the 2[nd] respondent under a Hire Purchase Agreement with the financier, being the petitioner herein. An endorsement of the financier under Section 51 of the Motor Vehicles Act, 1988 [for brevity “the MV Act”] was duly made in the Registration Certificate. 2. The 2[nd] respondent, having defaulted payments under the agreement, the petitioner was before the Arbitrator as per the terms of the agreement, the award in which, is produced at Exhibit P2. Even prior to that, the petitioner had approached the High Court of Judicature at Chennai and obtained an order to take possession of the vehicle. The possession of the vehicle is also said to have been taken in the year 2010. The vehicle - 2 - WP(C).No.31756 of 2014 having remained with the petitioner for the last 4 **½** years, the petitioner was also before the Registering Authority seeking transfer of the registration, in the name of the petitioner, who was the financier, as per sub-section (5) of Section 51 of the MV Act. The said application dated 30.08.2010, Exhibit P1, having not been considered, the petitioner was before this Court earlier, and since notice of hearing was issued by the authority pending the writ petition; the same was not pressed. The 2[nd] respondent too filed a writ petition, which was dismissed for default. 3. The 2[nd] respondent, who was the registered owner of the vehicle, has filed a counter affidavit raising contentions against the taking possession of the vehicle. It is the contention of the 2[nd] respondent that the petitioner had been issued notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 [for brevity “SARFAESI Act”] and without approaching the Chief Judicial Magistrate Court for taking possession of the vehicle, possession was taken illegally. In the circumstance of notice having been issued under the SARFAESI Act, no proceedings - 3 - WP(C).No.31756 of 2014 could have been taken before the High Court of Judicature, Chennai, is the specific contention taken. The 2[nd] respondent also allege that the petitioner never approached the High Court at Chennai and the vehicle was taken possession of by an imposter, styling himself as the Advocate Commissioner. The learned counsel for the 2[nd] respondent also places before me a judgment of a Division Bench of this Court reported in _**Sakthi Finance Ltd. v. T.C.Anilkumar**_ **[2003 (2) KLT SN 90 (Case No.118)].** 4. This Court has looked into the full text of the decision afore-cited. Therein, the financier obtained a duplicate Certificate of Registration under Section 51(5) and the registered owner challenged the same in a writ petition. The specific contention raised before Court was that there was a suit pending, filed by the registered owner and that the possession of the vehicle was not taken for reason of any default committed by the registered owner. A Division Bench of this Court found that Section 51(5) specifically speaks of a satisfaction to be arrived at by the Registering Authority that the possession of the vehicle - 4 - WP(C).No.31756 of 2014 was taken over by reason of a default by the registered owner. The language employed in sub-section (5) was also noticed to find that any objection filed has to be considered by the Registering Authority. It is also to be noticed that eventually, by the time the judgment was passed by the Division Bench, the suit filed by the registered owner was decreed in his favour. 5. None of such facts exist in the present case. The petitioner has not challenged the taking over of possession for the last 4 **½** years. The default is concluded by the arbitration award, produced at Exhibit P2. However, there can be no dispute that on an application being filed under sub-section (5) of Section 51, the Registering Authority will necessarily have to consider the objections and reject the same, if satisfied that the financier has made out a case for transfer of registration. 6. It is to be noticed that the 2[nd] respondent had not challenged the possession taken by the petitioner before any of the forums. The arbitration case was also not contested. The writ petition filed before this Court too stood rejected on default. Only when the petitioner, who had possession of the vehicle for the - 5 - WP(C).No.31756 of 2014 last 4 **½** years, approached the Registering Authority for transfer of the vehicle in the name of the petitioner and then approached this Court; did the 2[nd] respondent file objection contending that the possession was taken illegally. At this distance of time, there is no warrant for this Court to consider such objection made by the 2[nd] respondent. The application under Section 51(5), evidenced at Exhibit P1, has to be necessarily considered on the terms of the said provision. 7. Sub-section (5) of Section 51 specifically speaks of an opportunity to make such representation as the registered owner of the vehicle wishes to make. The 2[nd] respondent is said to have filed an objection before the Registering Authority. In such circumstance, the application filed under sub-section (5) of Section 51 of the MV Act shall be taken up and considered by the Registering Authority within a period of two months from the date of receipt of a certified copy of this judgment. The petitioner and the 2[nd] respondent shall appear before the Registering Authority on 21.04.2015, upon which the Registering Authority shall take up the matter and consider the same as directed WP(C).No.31756 of 2014 - 6 - herein above. If the 2[nd] respondent does not turn up, the Registering Authority has to consider the issue and pass final orders within the time stipulated above. The Original Petition is disposed of as above. Parties to bear their respective costs. Sd/K.Vinod Chandran Judge. vku/- [ true copy ]