Hire Purchase Act, 1972 - An Act Suffered Death After Birth

(By V.K. Babu Prakash, Munsiff, Thrissur)

The activity of Hire Purchase has become a common course of business nowadays. As the State is fastly fluxing into a consumer culture haven, Hire purchase schemes are on the run from one consumer to another. In the absence of a systematic statute governing the activity of Hire Purchase, the transactions are governed by the Indian Contract Act and the sale of Goods Act. It thus leaves the matters into the area of a contract thereby giving the parties to choose their own terms and conditions. The financier will always have an upper hand in such transaction as the hirer always approaches him for the finance. Thus the outcome of the transaction which is the Hire purchase agreement will always be unilateral giving much predominance to the rights of the financier over the rights of the hirer. Financier will levy service charge, additional finance charge, process charge etc. on anything and everything which the hirer would not expect or anticipate when he enters into contract. Later, when he makes any default, all these self-styled stipulations will hold him under a siege for a ransom. Most of the Hire purchase agreements contain numerous conditions which the hirer may not be able to read and chew at length while he enters into the transaction. He blindly signs on the agreement as shown by the financier. Always the financier retains the right to repossess the vehicle or goods which are the hypothica under the agreement. This power is exercised by the financier not by any lawful method but by his street - smart - might. The financier knew the lesson that once the vehicle or article is re­possessed, the hirer will crawl before him so that, he can break the spine of the hirer with all sorts of additional finance charges.

As there were no uniform patterns or parameters which governed the terms and conditions of the Hire purchase agreement, Parliament thought it fit to enact a statute on the subject. The outcome was the Hire Purchase Act, 1972. The Hire Purchase Act which aimed at promoting and protecting consumer interest in the country received the President's assent on 8.6.1972. It was after the joint committee of both Houses amended it on the basis of the representations it had received. Thus the Act became the law by virtue of Art.111 of the Constitution. However, as is usual in such circumstances, the Act contained a provision that it would come into force on such a day as the Central Government may by notification in the Official Gazette appoint. The Government issued the first notification on 23.9.72, stating that the Act would come into force from 1.1.73. But before the Act would come into force it was withdrawn. The second date 1.9.73 was subsequently notified in the Gazette. Yet again before the operative date, it was withdrawn by the Ministry of Law, Justice and Company affairs on 23.8.73. Now though 31 years have passed since the enactment of the Act, no further notifications have been passed rendering it operative or in-operative. Neither has the Act been repealed. A representation was moved before the Joint Committee of the Parliament. The committee issued notice and the Ministry of Law and Justice informed the committee that the Government had received several representations against the enforcement of the Act. A strong lobby of the Federation of Indian Hire Purchase Association and the loan sharks of Bombay and Delhi had pulled strings against the Act thereby the executive suddenly withdrew the act from coming into force. The Act primarily passed on the line of Hire Purchase Act of England, 1954. It had been introduced as a bill in Parliament on the specific recommendation of the 20th report of the Law Commission 1968. A motion for reference was made to the Joint Committee which recommended certain amendments. Thereafter it was passed. The Act primarily designed to protect the purchaser or hirer in the Hire Purchase transaction. The legislation sought to introduce the concept of payment of statutory proportion ie., once a certain minimum number of instalments had already been paid by the purchaser, irrespective of the goods involved, the owner does not have the right to recover possession of the goods. The owner or the financier would have to go to a Court of Law and could recover the balance of payment only after the orders of the Court. Ss. 17, 19 and 20 of the Act laid down specific conditions of warranty and guarantee for the protection and benefit of consumer. The Act also contemplated the hirer right to assign whatever he had purchased to another individual. Such progressive enactment was stalled by the executive of the Central Government. The Joint Committee in its report dated 27.4.87 had criticized the act of the Government as follows: "The Act passed in 1972 and assented by the President regulating Hire purchase transaction ensuring the protection of the consumer which is withdrawn is not at all justifiable."

This action of the executive has not only created an unprecedented situation, but also raised serious question of the gradually undermined sovereignty of the Parliament by the executive. It has left an important piece of socio-economic legislation in limbo. The pity is that the act was born as a fully grown healthy baby, whereas, it was strangulated to death by the Ministry of Law and Justice soon after its birth.

Personal Law, Philosophy Behind

(By V.K. Babu Prakash, Munsiff, Trissur)

There does not appear to be a complete agreement on the definition of the expression 'personal law'. What is the scope of personal law? According to Prof. G.C. Cheshire in his book Private International Law, the following matters are to a greater or lesser extent governed by the personal law:

1. The essential validity of a marriage.

2 The mutual rights and obligations of husband and wife, parent and child, guardian and ward.

3. The effect of marriage on the proprietory right of husband and wife.

4. Divorce.

5. The annulment of marriage though only to a limited degree.

6. Legitimation and adoption.

7. Certain aspects of capacity.

8. Will of movables and intestate succession to movables.

It would therefore appear that the personal law is a law that relates to the personal status of individuals. It is for this reason that under the rules of private international law, the personal law is determined according to one's domicile, so that, one would be governed constantly by one and the same law irrespective of one's temporary abode or the place where the cause of action might arise. The personal law of a person according to well accepted principles of private international law is determined by lex-loci which means the law of locality or territory in which a person is domiciled. However in India there is no lex-loci because there is no uniform Civil law regulating the above topics irrespective of the community to which one may belong. The personal law in India therefore has its own ramifications and features. For one thing there is no lex-loci in India, yet for another the personal law of a person varies according to the community to which he belongs. This position was clearly stated by the Privy Council as early as in 1871 in Skinner v. Ford as follows: "While Brahmins, Buddhists, Christians, Mohammedans, Parcy and Sikhs are one nation enjoying equal political rights and having perfect equality before tribunals, they co-exist as separate and from distinct communities having distinct laws affecting every relation of life. The law of husband and wife, parent and child, devolution and disposition of property are all different, depending on each case on the body to which the individual is deemed to belong and the difference of religion pervades and governs all domestic usage and social relations".

Thus, India is a land of personal laws. The proverb 'unity in diversity' does not have any appreciable meaning in the present context of India. The very apt proverb that could be applicable is 'unity is diversity' because of the different and conflicting personal laws which are applicable to different communities all through out India. Even the very same communities at different places have got different kind of personal laws to follow: The personal law in India is the system of rules applicable by any Court to an individual in respect of the topic covered by that law determined by reference to the religion which he professes or purports to profess or is presumed to profess.

The Christians in India to a large extent have to rely on the codified laws and in the absence of specific statutory provisions have to rely on the common law of England. Immovable properties devolved according to the place where the property is situated. In that case a different system of law will begin to operate in regard to the division of one's estate. The personal laws applicable to the Christians in India are largely codified in the form of Indian Succession Act, Christian Marriage Act and Divorce Act. The Christians in Kerala had their own system of law codified in the form of Travancore Christian Succession Act and the Cochin Christian Succession Act which have been superseded by the Indian Succession Act. The Cochin Christians Civil Marriage Act still survives. In the case of conflict which law will prevail has to be decided by the Apex Court. Few people in India may know what law will apply to their estate when they died. A person who is governed by the 'Marumakkathayam' system in Malabar when he is settled in Madras will not know what system will apply because even within the same system, different States have passed laws amending them. These unfortunate situations can be remedied only if the enlightening public opinion in India forces the authorities to pass a uniform Civil Code applicable to the people in India irrespective of their caste, community or religion; It may be that the Muslim population in India has not yet reached a stage voluntarily to accept a uniform Civil Code, but that could not prevent the other communities from subscribing to one single Code applicable to India. When enlightened Muslims opt then a uniform Code can be put forward for the entire population of India. Even among Muslims an option can be given for those who may opt for the common Civil Code. Those who happen to read the provisions under the Indian Succession Act will readily agree that Christian leaders have to take efforts to amend the law accordingly. Even among the Muslim Community different groups exist. These groups do not follow a uniform personal law for very many matters. Shiahs and Sunnis follow different kind of succession rules. Under the prestine Shariath law a Muslim cannot disinherit his legal heirs, i.e., he cannot write a will to exclude those who are entitled to the property otherwise on his death. Only a small portion of the estate could be given under the will. Though this is a good principle, it is not followed by the Muslims in Malabar area as well as in the Union Territory of Lackadives who follow a different system of succession other than the Muslim Law. It is the Mappila Marumakkathayam Act. In another example a Muslim who has chosen to marry under the Special Marriage Act cannot have a recourse to the Muslim Law for the succession of his estate to his legal heirs whereas his rule of succession will be under the Indian succession Act than under the Muslim Law. Thus among the Muslim community also there is no uniform personal law applicable through out the territory of India as well as Kerala.

The domicile of a person will determine the personal law of a person. Therefore if a foreigner has acquired domicile in India having set up a permanent home with the intention of settling in India permanently, he will be governed by the personal law that is applicable to him in India. If he is a Christian the personal law applicable to Christians in India will apply to him irrespective of his nationality, citizenship or domicile of origin. What is the personal law applicable to the Christians in India has been considered by the Full Bench of Kerala High Court in the famous decision Varkey v. Thressia reported in AIR 1955 Kerala 255. The main question that arose for consideration in the above case was whether the wife was entitled to maintenance from her husband under the personal law of Christians in India. The major legal question that was incidently referred to was what is the personal law that governs Christians in India? In the above case the wife filed a civil suit for maintenance for herself and two children from her husband. In the appeal the husband contended that according to the personal law of the parties, both being the Christians the husband is not legally bound to maintain his wife. It may be mentioned that there is no statutory law relating to such questions under the Code of Criminal Procedure a wife to which ever community she may belong can apply to the Magistrate Court for an order for maintenance against her husband who having means neglected or refused to maintain her. But that has nothing to do with the question whether under the personal law the wife has a civil right to claim maintenance from her Christian husband. Thus the Full Bench had to consider what is the personal law that will govern Christians in India and from what source the court can draw a common law applicable in such cases. The court observed as follows: "Under the Canon Law the husband is bound to maintain his wife." The Hon'ble High Court relied on the commentary of Augustine vide Commentary of Canon Law. The learned author says that the husband has the duty of providing his wife with the necessities of life which the civil law further declares. All though the Canon Law referred to above does not as such apply to Catholics belonging to Orient Churches including Syrian Catholics, principles relating to marital obligations embodied in the Canon Law applied to all Catholics. In matters not governed by statute or customary law, it is the principles of justice, equity and good conscience that should apply." The complexity of the personal law applicable to Christians in India has an added dimention in view of the different laws followed in the former French Territories and by the Portuguese colonies in India. For instance the provisions of the Portuguese Civil Code relating to succession both testamentory or non-testamentory are still in operation in the Territory of Goa. These provisions apply both to Hindu and Christian, but not to those treated as foreigners in Goa. When Pondichery was brought under the Indian Union the people of Pondichery were given an option to declare themselves as renoncents and still continue to be governed by the French Law i.e. the Nepolean Civil Code. Thus the picture of personal laws in India does not appear to give a satisfactory outline of rule of succession. It has got different outlook with different communities and their religious sects. Thus time has come up to think about a common civil code by the people of India.

The Gujarat Model - Eschew the Same

(By V.R. Venkatakrishnun, Advocate, Ernakulam)

I have read with mixed feeling the Article "Gujarat Model in Judicial Functioning" by a former Judge of this Honourable Court and published in the Journal Section of 2003 (2) KLT Part 11, Page 49. At the very outset it behoves me and the rest of the lawyers to state that in the analysis and assessment of the place of holidays in the working of Courts, the lawyers have been completely ignored. It is quite important to note that without lawyers there are no Judges and without lawyers and Judges there are no courts. It deserves repetition when I say that lawyers form the most integral part of the whole set up.

There is no harm in accepting a well known fact that the Anglo Saxon System of Jurisprudence has come to stay and it is universally recognized that it is one of the best, if not the best in the whole World. We have nothing to be ashamed of in adopting the Anglo Saxon System which has many virtues and few draw-backs. The orderly state of affairs which is obtained in this country is largely due to the adoption of the Anglo Saxon System.

Holidays are essential for lawyers because they stand at a double disadvantage. A conscientious lawyer has to undergo very many travails and anxieties before getting settled down in the legal profession. The demands on an industrious lawyer are various and cannot be arithmetically enumerated. The preparation, the anxiety and the uncertainty associated with the legal profession are much more than that of a Judge because it is difficult to be a successful lawyer but it is not that difficult to be a successful and acceptable Judge. There are built-in disabilities in the legal profession. The competent lawyer is not always a successful lawyer and a sense of disappointment eats into the vitals of his very existence. According to me the agony that a normal lawyer who is hard working, patient, honest and industrious undergoes more strain that anyone else. He deserves and certainly deserves more than anybody else, a fairly long spell of holidays every year to recoup from the effects of the profession. The suggestion is that there are many calls on the resources and time of a lawyer that by the end of the week, he is worn out. The whole World is on a five day week programme and so far as lawyers are concerned a vacation is a must and an unavoidable must. He has to attend to his professional matters, he is essentially a member of a domestic set up with all the foibles and failings attendant on that.

Having holidays is not a British tradition and even if it is so there is nothing wrong in following it. Despite for some period is essential because that is the time when the lawyer can recover and recuperate. His life is not that of an ordinary employee or a quill driver. He has worries and botheration which no one else has. He stands on an unfortunately different pedestal and he is placed always in a situation which is far from enviable.

I am not comparing them with Judges. According to me it is difficult to judge, to decide and come to a conclusion. I would prefer to be a lawyer than to be a Judge. But all the same a Judge does not suffer from any of those built-in disabilities of a lawyer. Judges require holidays and in the case of lawyers it is all the more so.

Incessant work without any break is not conducive to quality work. Rest is a must because more work is turned out by a break in the work schedule and the body and the mind are better equipped when there is a break. This suggestion that vacation should be dispensed with, is not merely fantastic but impractical. A case for reduction of the holidays may be considered, but not giving up vacation/altogether at all. It is most unfortunate that the writer of this Article, a former Judge, concerns himself only about Judges without reminding himself of the fact that the lawyers point of view should be a matter of immediate concern. It is to put it very mildly an unpardonable omission not to take into account the lawyers and their needs before embarking upon an opinion regarding holidays. It is strange to notice, as the article indicates, that Judges alone work and that will affect their health. It is relevant and proper to note that lawyers work more and they work under greater strain and more disabilities. A Judge certainly has his own share of work but he is provided with all amenities so that he may work in a congenial atmosphere without worrying for the morrow. Certainly nobody shall grudge a Judge the amenities provided for him so that he may discharge his functions honestly, without fear and favour.

The legal profession has innumerable and imponderable strains. It is they who require more holidays, more respite to meet the challenge of the profession. If there are no holidays or vacation, quite a substantial percentage of lawyers will work because they may be compelled to do so for various reasons. But ultimately that lawyer who over works lands himself in premature old age or serious sickness. It is universely admitted that without lawyers the system of judiciary cannot function effectively and any decision without taking the lot of the lawyers is unfortunately a prejudiced and one sided decision.

Holidays are a must but one can think of reducing the same but not dispensing with them, Docket explosion cannot be met by appointing more Judges. The remedy lies elsewhere. I must confess that Indians as a class are not sufficiently industrious but that does not mean that holidays should be dispensed with at least in so far as the honest industrious and pains-taking lawyers are concerned.

The question of 'mid summer vacation' is not intended for Judges of foreign origin. It is nowhere suggested that people in the tropic must sweat all the 365 days of the year without respite, break and relaxation. Civil Courts stand on a different footing. Criminal Courts have to work all through because the need for the same is throughout the year and may be needed at any time of the day and night. The Magistracy must be provided with holidays, with a sufficient number of personnel in the Magistracy .system. It is notorious that the police man has no holidays but he can take leave and relax. The nature of their work is different, so that it is not suggested they should not be given rest or respite but that does not mean that they can be compared with lawyers or Judges. It can he stated without contradiction that Judges and lawyers stand on a different footing. More is demanded from the lawyers and holidays are a must; it may be suggested that the breaks shall be less. It is most unfortunate that the article under reference is concentrating on Judges aid Judges alone and their health. It is a misnomer to State that Judges work more; that may not be a fully correct statement.

People must know to enjoy their holidays and spend their leisure more sensibly and usefully. Judges need not confine themselves to law alone. They must have other interests in life to equip themselves as Judges in the true sense. In that case, nobody will get bored at the end of couple of weeks of holidays. There are lawyers who expand their horizon and get themselves interested in various other activities including reading and indulge in the luxury of developing their interest in literature. Those lawyers stand apart and they need holidays and they enjoy the holidays and some of them are more knowledgeable than most others.

The feasibility of reducing the holidays may be considered but the suggestion of dispensing with holidays is too fantastic and impractical. Holidays equip you to do more work after a spell of holidays; 'all work and no play makes Jack a dull boy' this adage is compellingly relevant and the suggestion of dispensing with holidays is fraught with serious consequences. Having holidays is not encouraging laziness but doing away with them is fraught with consequence in your health and mental outlook.

Therefore fight for holidays if they are done away with; but modulate the same as the situation demands. We shall not follow Gujarat in any manner, under any circumstances.

tImSXn PohnXw, Hcp Znhkw

JUSTICE A. LEKSHMIKUTTY

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A§s\ t]mIpw Hmtcm Zn\hpw

BbXp ]ns¶sbmcmhÀ¯\hpw.

\·IÄ hcp¯s«

      To My Beloved Shri Justice K.A. Mohamed Shafi

JUSTICE A. LEKSHMIKUTTY

“\·IÄ hcp¯s«”

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