Does the dictum in Tarun Bhargava v. State of Haryana (2003 (3) KLT 397 Punjab & Haryana) as approved by Honourable Justice K.R. Udayabhanu in the unreported decision in Shibi Francis v. State of Kerala represent the correct law applicable in Kerala now? Does the decision in Shibi Francis need reconsideration? These questions are to be sorted out in this Crl.M.C.

2. These Crl.M.Cs. are directed against a common order passed by the learned Magistrate. The rival contestants had claimed release of a vehicle in their favour under S.451 Cr.P.C. The learned Magistrate by the impugned common order directed that the vehicle he handed over to the registered owner of the vehicle in preference to the person who claimed himself to be the present owner respectively. I shall hereafter refer to them as the registered owner and present owner. The present owner claimed rights from a finance company, I shall hereafter refer to them as the financier, who had admittedly advanced amounts to the registered owner for purchase of the vehicle under a hypothecation agreement, a copy of which is produced as Annexure-XII. The financier had also appeared before the learned Magistrate and supported the claim of the present owner. The learned Magistrate without going into the disputed facts in detail, came to the conclusion that on the admitted case of the financier and the present owner there can be no transfer of title from the registered owner to the financier or the present owner. In doing so, the learned Magistrate placed reliance on the unreported decision of another Single Bench (Justice K.R. Udayabhanu) of this Court in Shibi Francis v. State of Kerala (W.P.(C). No.21411 of 2006 dated 10.10.06). That decision had considered in detail the law on the question as to whether a financier advancing a loan under a hypothecation agreement has a right to repossess a vehicle in the event of default even if there be provisions justifying that course in the agreement between the parties.

3. That decision in turn placed reliance on an earlier decision of the Punjab and Haryana High Court reported in Tarun Bhargava v. Slate of Haryana (2003 (3) KLT 397).

4. It is really not necessary for me to advert in detail to the facts in controversy but for the purpose of completion of narration, it appears only to be proper to advert to the same. The registered owner purchased a vehicle with the financial assistance provided by the financier. The registered owner is the title holder in whose name the registration certificate stands. He had the liability to repay the amounts in 60 installments each of Rs.10,917/- commencing from 1.10.2005. There admittedly was default in payment of the monthly installments. It is the case of the financier that invoking the right of repossession under the contract between them, repossession was effected on 22-9-2006. The registered owner has a contention that it was not lawful exercise of any such rights even assuming such right to be there: but it was a case of wanton criminal conduct of snatching away the vehicle by use of force from the driver of the registered owner on 21.9.2006. There is a controversy between parties about actual date of repossession but that does not appear to be relevant to any extent. What appears to me to be relevant is that the financier has no case that there was willing and voluntary surrender of the vehicle nor is there a contention that any assistance of courts or authorities was sought or obtained for such repossession of the vehicle. On the controversial facts as they now are, it is easy to accept the case of the registered owner that there was involuntary reduction of possession from the registered owner by the financier by use of force. There is of course controversy as to whether a report had been made before the local police and a G D entry is there in the local police station about such alleged forcible repossession. I take note only of the fact that there is no specific case of peaceful reposses