HASWl VS. JAYTISSA AND TWO OTHERS

HASWl VS. JAYTISSA AND TWO OTHERS

COURT OF APPEAL
SISIRA DE ABREW. J
ABEYRATNE. J
CA (PHC) 13/2006
HC COLOMBO HCRA 429/2003
MC MT. LAVINIA 73167
JULY 5,2010

Civil Procedure Code Section 29, Section 431(1) -Hire Purchase Agreement - Non Payment of instalment - Vehicle seized - Vehicle produced in Court - Who is entitled to the Vehicle.? - Absolute owner or the registered owner? - Rights of the person from whom the vehicle was seized?

Upon a hire purchase agreement between one D and K- respondent - an investment company- D acquired possession of a vehicle. K was the absolute owner and D the registered owner. Thereafter upon a contract between D and the appellant, the appellant acquired the possession of the vehicle and he had paid five installments to K.K seized the vehicle as instalments were not paid, and the Police on a complaint lodged by the appellant reported facts to the Magistrate, seized the C vehicle as ordered and produced the vehicle in Court which held an inquiry and ordered the delivery of possession of the vehicle to the appellant. The High Court revised the said order and ordered that the vehicle be handed over to K.

On appeal -

Held:

(1) The respondent K on the purchase agreement has become the absolute owner. D is the registered owner, the appellant is neither the absolute owner nor the registered owner.

Per Sisira de Abrew.J

"principle that property must be delivered to the person from whose possession it was seized is not an absolute one and there are limitations to the said principle. The applicability of this

principle depends on the facts of each case. I hold that when the property seized by the Police Officer does not fall into any of the categories mentioned in Section 431 (1) of the Criminal Procedure Code, the Magistrate only on that ground should not hand over the property from whose possession it was seized. He must on such occasions hand over the property to the true owner and not to the person from whose possession it was taken by the Police - words as it thinks fit in Section 431(1) gives discretion to the Magistrate to hand over property to the true owner or to the person who is entitled to the possession of the property".

APPEAL from a judgment of the High Court of Colombo.

Cases refferred to :-

(1) De Alwis vs. De Alwis - 78-79-80- SLR 17

(2) Punchi Nona vs. Hinni Appuhami - 60 NLR 5 18

(3) Piyadasa vs. Punchibanda- 62 NLR 307

(4) Sugathapala vs. Thambirajah- 67 NLR 91

(5) Balagalla vs. Somaratne 70 NLR 382

(6) Maniyarthasan vs. Rose 71 NLR 164

(7) Freudenburg Industries Ltd vs. Dias Mechanical Engineering Ltd CA 69/79 CAM 14.7.83

(8) Silva and another vs. OIC Police station, Thambuthegama 1991 2 Sri LR 83 (followed)

S.N. Vijithsinghe for 1st party respondent-appellant

C.R. de Silva PC with R.J. de Silva and D. Weerawardena for petitioner-respondent

September 09th 2010

SISIRA DE ABREW J.

    Upon a hire purchase agreement between one Subash Dayananda and Kalutota Investment (Pvt) Ltd (hereinafter referred to as the respondent), Subash Dayananda acquired possession of vehicle No 58-7635. The respondent became the absolute owner of the vehicle whilst Subash Dayananda became the registered owner. Thereafter upon a contract between Subash Dayananda and the appellant, the latter

acquired the possession of the vehicle. Learned Counsel for the appellant submitted that the appellant had paid five installments to the respondent. He therefore tried to contend that the appellant is entitled to possess the vehicle and the respondent had no right to seize the vehicle. However the respondent seized the vehicle as installments were not paid as agreed in the hire purchase agreement. Police, on a complaint made by the appellant, reported facts to the Magistrate who made an order to produce the vehicle in court. Police in compliance with the said order produced the vehicle in court. The learned Magistrate, after inquiry,

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