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Judgment
Natarajan, J.—The interested appellants in this appeal are appellants 2 and 3, viz., the State of Kerala represented by the Collector of
Kottayam and the Regional Transport Authority, Kottayam, though appellants 1 and 4 also figure as appellants in the cause title of the
memorandum of appeal. The issue involved in the appeal lies within a narrow compass, but the point for consideration is one of some interest. The
question for consideration is whether a financier can be proceeded against for realisation of motor vehicles tax payable by a stage carriage
operator, who had entered into a hire-purchase agreement with the financier. One MC. Kuriyan, who was a registered owner and a permit holder
of a stage carriage bearing registration No. KLK.8269, had entered into a hire-purchase agreement with the respondent on 10th June, 1968, and
had agreed therein to pay a sum of Rs. 50,400, in stated instalments. The hire-purchase agreement was duly endorsed on the registration
certificate. As Kuriyan was not regular in the payment of the instalments, the respondent contemplated taking action against him in terms of the
agreement. But on more than one occasion Kuriyan succeeded in getting modification of the terms of the agreement regarding the amount payable
by way of instalments. Even after modification of terms, Kuriyan committed default and hence the respondent instituted proceedings against him in
the courts in Kerala and Madras and had the vehicle seized with the help of an Advocate-Commissioner. Eventually Kuriyan compromised the
matter with the respondent and settled accounts with it and took delivery of the vehicle. He is also said to have obtained letters from the
respondent expressing consent for cancellation of the hire-purchase agreement in the registration certificate. As Kuriyan had failed to pay certain
tax payments, the State of Kerala, viz., the second appellant, issued notice to him in November 1972 calling upon him to pay a sum of Rs. 10,125.
As the amount was not forthcoming, the second appellant had asked the first appellant to collect the amount from the respondent. Having come to
know of it, the respondent sent a lawyer''s notice on 6th July, 1973, stating that it was not liable to pay the said amount, as there was no subsisting
hire-purchase agreement between it and Kuriyan. After some interval of time the first appellant intimated the respondent that he had received
instructions from the appellants 2 and 3 to recover the sum of Rs. 10,125, payable by Kuriyan from it under the Revenue Recovery Act. In order
to quash that order the respondent filed W.P. 573 of 1974. It contended therein that it was neither the operator nor the owner of the vehicle and
as such it was not liable to pay the tax arrears of Kuriyan, Ramanujam J. sustained the case of the respondent and applying the ratio laid down by
him in J. Bahadur Singh Jain v. Tahsildar, South West, Madras 1978 2 M.L.J. 282, held that the respondent was only a hire purchase agreement
holder and not an operator or owner of the vehicle and as such it could not be proceeded against for recovery of the tax arrears due by the
operator. Consequently the learned Judge allowed the writ petition and issued a rule in favour of the respondent. It is to canvass the correctness of
the order of the learned Judge, the State of Kerala has preferred this appeal.
Mr. C. Chinnaswami, learned Additional Government Pleader, appearing for the appellants strenuously contended that the learned Judge has
failed to consider 8.9 of the Kerala Motor Vehicles Taxation Act 1963, hereinafter referred to as the Kerala Act 24 of 1963, which lays down
that arrears of motor vehicles tax can be recovered from a transferee of the vehicle or from a person who has possession or control of the vehicle.
In this case, according to Mr. Chinnaswami, the respondent had taken proceedings against Kuriyan and seized the vehicle and it had also applied
for transfer of ownership to its name and in fact registration had been transferred and a duplicate registration certificate book had also been
prepared, but it was not issued in as much as the tax arrears due on the vehicle had not been paid. The learned Additional Government Pleader
would, therefore, say that even if the respondent was not the operator, it stood in the position of an owner or a person having control or
possession of the vehicle and as such it cannot escape its liability to pay the tax arrears which Kuriyan had failed to remit, when the vehicle was in
his control.
In order to understand the controversy, it is necessary to refer to some provisions of the Kerala Act 24 of 1963 and the Kerala Motor Vehicles
(Taxation of Passengers and Goods) Act, 1963, hereinafter referred to as the Kerala Act 25 of 1963. As already stated, under S. 9 of the Kerala
Act 24 of 1963, if a tax leviable in respect of any motor vehicle remained unpaid by any person liable for the payment thereof and such person
before having paid the tax, had transferred the ownership of the vehicle or had ceased to be in possession or control of the vehicle, the person to
whom the ownership of the vehicle had been transferred or the person who had possession or control of such vehicle shall be liable to pay the said
tax to the taxation Officer. Sub-S. (2) of S. 9 lays down that in spite of the provisions contained in sub-S.(1), the liability of the person who had
transferred the ownership or who had ceased to be in possession or control of the vehicle would not be affected in any manner.
In the Kerala Act 25 of 1963, an ''operator'' has been defined to be ''the owner or the person having possession or control of the vehicle and
includes any person whose name is entered in the permit as holder thereof."" S. 10 lays down that in respect of tax and penalty payable by an
operator, whenever a default occurs, the prescribed officer shall serve a notice of demand on the operator for payment of the tax and penalty and
if, after service of notice, the tax and penalty are not paid, then the concerned vehicle and its accessories may be distrained and sold under the
Revenue Recovery Act. S. 11 of the Kerala Act 25 of 1563 is analogous to S. 9 of the Kerala Act 24 of 1963 and makes the subsequent
transferee or person having possession or control of the vehicle liable to pay the tax arrears.
It is in this conspectus we have to examine the facts of this case. From the facts mentioned above, it may be seen that the respondent was
admittedly not the operator of the vehicle. Even so, the appellants would contend that it stood in the position of an owner or a person having
possession or can-trot of the vehicle and hence it is liable to pay the tax. The expression ''owner'' has not been defined in the Kerala Act 25 of
1963. But the said expression has been defined in the Motor Vehicles Act as follows--
Where the person in possession of a Motor vehicle is a minor, the guardian of such minor and in relation to a vehicle which is subject to a hire
purchase agreement the person in possession of the vehicle under that agreement.
If the respondent''s position is tested with reference to the above definition, then it will follow that it cannot be treated as the owner of the vehicle,
because even though the respondent''s name may appear as the owner in the registration certificate in terms of the hire purchase agreement the
Motor Vehicles Act treats only the person in possession of the vehicle subject to the hire purchase agreement as the owner of the vehicle. The
appellants would say that since the respondent had taken possession of the vehicle and had also applied for transfer of registry to its name and for
the issue of a duplicate certificate, the respondent''s case transcends the limit set out in the Motor Vehicles Act and it really stands in the position of
an owner as well as a person having possession or control of the vehicle. The respondent would, however, refute this statement and say that after it
had the vehicle seized with the help of a Commissioner, the operator Kuriyan compromised the matter with it and he settled the accounts and
obtained release of the vehicle and be also obtained the documents for cancellation of the hire purchase agreement and the endorsement relating to
the agreement in the registration certificate book. The respondent has filed a reply affidavit wherein it is stated that the duplicate registration
certificate was applied in order to exercise the power of sale vested with it under the hire purchase agreement, but the power could not be
exercised, because the duplicate certificate was not issued and in the meanwhile Kuriyan approached it and settled the accounts and obtained
release of the vehicle. We see no reason to doubt the veracity of the statement of the respondent in the reply affidavit. Therefore, on facts it cannot
be held that the respondent ever stood in the position of an owner of a person having control or possession of the vehicle. On the basis of this
conclusion the writ appeal has to fail.
However, let us assume for argument''s sake that the hire purchase agreement is still in force and as per the terms of the hire purchase agreement
the respondent is shown as the owner of the vehicle in the registration certificate book. We will now examine the position whether in such a state of
affairs the respondent can be held liable to pay the tax arrears which Kuriyan had failed to pay. For determining the question, it is necessary to
refer to the case law on the point.
In Sundaram Finance Ltd. Vs. State of Kerala and Another, the difference between a hire purchase agreement between an owner and a hirer on
the one hand and a financier and the purchaser on the other hand came to be considered. In so far as the latter type of transactions is concerned, it
is pointed out that in all such transactions the goods are purchased by the customer, who in consideration of executing a hire purchase agreement
and allied documents, remains in possession of the goods, subject to liability to pay the amount paid by the financier on his behalf to the owner or
dealer and the financier obtains a hire purchase agreement which gives him a licence to seize the goods in the event of failure by the customer to
abide by the conditions of the hire purchase agreement. The Court, therefore, held that in all such cases the intention of the financier in obtaining the
hire purchase agreement and allied documents was only to secure the return of the loan advanced to the customer and no real sale of the goods
was ever intended by the customer to the financier and that the said transactions are merely financing transactions.
In Official Liquidator, Manasuba and Co. Pvt. Ltd. v. Commissioner of Police, Madras and others 1969 I C.L.J. 5, Ramaprasada Rao. J. as he
then was, has held that whenever a financier enters into the picture and facilitates a customer buying a vehicle from the owner or dealer, it is really a
case of refinancing the hire purchase agreements and that there is difference between this type of a case and the other in which a hire purchase
agreement is entered into by the owner with the customer.
In the Tahsildar, South West, Madras-32 v. M/s. J. Bahadur Singh Jain and Co., W.A. 531 of 1978 dt. 18th February, 1985 a Division Bench
of this Court consisting of V. Ramaswami, J., (as he then was), and Sathiadev, J., had occasion to deal with a similar case as the one on hand. The
Bench held that though under common law, a hire purchase agreement holder may be termed as owner, he cannot be treated as the owner of a
motor vehicle for the purpose of the Motor Vehicles Act and the rules framed thereunder and in such circumstances, the liability to pay the motor
vehicles tax could not be fastened on the hire purchase financier, and the liability will always remain on the person operating the vehicle. In the light
of the ratio contained in the aforesaid decisions, it follows that even if the hire-purchase agreement entered into by Kurtyaa with the respondent is
in force, the respondent cannot be treated as the owner or as a person having possession or control of the vehicle, as envisaged in the Motor
Vehicles Act, and called upon to answer the tax liability of Kuriyan. We are therefore, of the view that the learned single Judge has rightly allowed
the writ petition and quashed the order of demand raised against the respondent. Consequently the writ appeal fails and will stand dismissed. There
will be no order as to costs.