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Sundaram Finance Limited Vs. the State of Kerala and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax;Civil
CourtKerala High Court
Decided On
Case NumberO.P. No. 1153 of 1962
Judge
Reported in[1964]15STC228(Ker)
AppellantSundaram Finance Limited
RespondentThe State of Kerala and anr.
Appellant Advocate K.V. Suryanarayana Iyer,; N. Sundara Iyer and; V.R. Venk
Respondent AdvocateAdv. General
DispositionPetition dismissed
Cases ReferredLtd. v. Deputy Commercial Tax Officer A.I.R.
Excerpt:
- - 4. there is no doubt that our duty in a case like this is to find out the real nature of the transaction......for the registration of bills of sale (halsbury, third edition, vol. iii, pages 257 and 260).6. a hire-purchase agreement does not come within the ambit of the bills of sale act (1878) amendment act, 1882. a motive, therefore, exists in england to camouflage a bill of sale as a hire-purchase agreement and the courts in england have been called upon, on. many occasions, to strip the verbiage and arrive at the true nature of the transaction concerned.7. staffs motor guarantee, limited v. british wagon company, limited, [1934] 2 k.b. 305 is a case where the owner of a motor lorry-thomas heap- sold his lorry to a finance company and took it back under a hire-purchase agreement. it was contended that the transaction in its true nature was a mere loan by the finance company to thomas heap to.....
Judgment:

M.S. Menon, C.J.

1. The petitioner-Sundaram Finance Limited- questions the validity of exhibit F, an order of the Sales Tax Officer, Ernakulam, dated 25th March, 1962. The sole question for determination is whether under the arrangements between the company and its customers there is a sale by the customers to the company at the commencement of those arrangements and a resale by the company to the customers at the termination thereof.

2. It is common ground that if there was a sale by the customers to the company at the inception of the arrangements, there will be a resale by the company to the customers at the termination of those arrangements and that the company will be liable to pay sales tax on the resale as held by the Department. The question for determination, therefore, is whether there is a transfer of property by way of sale from the customers to the company at the inception of the arrangements between them.

3. The arrangements are evidenced by the documents which have been marked as exhibits Bl to B9. Copies of those exhibits are appended to this judgment.

4. There is no doubt that our duty in a case like this is to find out the real nature of the transaction. That does not mean, however, that the documents should be disregarded. The proper approach is the approach indicated by Lord Watson in McEntire v. Crossley Brothers 64 L.J.P.C. 129:

As is usual in cases of this kind, we have heard a great deal in the course of the appellant's argument of the necessity of attending to the substance of the agreement which we have to construe. That is a canon of construction that is applicable to all agreements but in its application to an agreement it must always be borne in mind that the substance of the agreement must ultimately be found in the language of the contract itself. The duty of a Court is to consider every part of the agreement, every stipulation which it contains, and to consider their mutual bearing upon each other ; but it is entirely beyond the function of a Court to discard the plain meaning of a term in the agreement unless there can be found within its four corners other language and other stipulations which necessarily rob the stipulation of its primary meaning.

5. In England the Bills of Sale Act (1878) Amendment Act, 1882, was passed in order to 'prevent needy persons being entrapped into signing complicated documents which they might often be unable to comprehend, and so being subjected by their creditors to the enforcement of harsh and unreasonable provisions'. With that object in view, 'a particular form of words was insisted on, which should plainly express the nature of the contract as to the loan and the security for the loan'. The Act also provided for the registration of bills of sale (Halsbury, Third Edition, Vol. III, pages 257 and 260).

6. A hire-purchase agreement does not come within the ambit of the Bills of Sale Act (1878) Amendment Act, 1882. A motive, therefore, exists in England to camouflage a bill of sale as a hire-purchase agreement and the courts in England have been called upon, on. many occasions, to strip the verbiage and arrive at the true nature of the transaction concerned.

7. Staffs Motor Guarantee, Limited v. British Wagon Company, Limited, [1934] 2 K.B. 305 is a case where the owner of a motor lorry-Thomas Heap- sold his lorry to a finance company and took it back under a hire-purchase agreement. It was contended that the transaction in its true nature was a mere loan by the finance company to Thomas Heap to be repaid by certain instalments and that the hire-purchase agreement really amounted only to the giving of a security on the lorry by Thomas Heap to the finance company with power to seize it in order to enforce its debt. The Court said :-

The question how a transaction of this sort ought to be regarded has been discussed in a number of cases where the facts were somewhat similar to those of the present case, and some of them have been decided one way and some another. The contrast between the two classes of cases is illustrated by Yorkshire Railway Wagon Co. v. Maclure 21 Ch. D. 309 on the one hand, where it was held that the transaction was not void but was genuine, and by In re Watson ; Ex parie Official Receiver (1890) 25 Q.B.D. 27. on the other hand, in which it was held that the transaction was a mere loan with a granting as security of a chattel remaining in the possession of the borrower. I have to make up my mind into which of these classes or types of cases this one falls, and I come to the conclusion that it falls on the side of the line on which Yorkshire Railway Wagon Co. v. Maclure 21 Ch. D. 309 is found. I think that the transaction here in question was a genuine purchase of the lorry by the defendants and a genuine re-letting of it to Heap.

8. A case which falls on the other side of the line-a case in which a hire-purchase agreement was treated as a bill of sale-is Polsky v. S. and A. Services (1951) 1 All E.R. 185. In that case Lord Goddard, C.J., emphasised the fact that the main object of the Act of 1882 was to protect borrowers as against lenders and that the court had to determine whether the transaction in question was a genuine sale by the original owner of the motor car to the person who was' finding the money and a genuine re-letting by the latter to the original owner on hire-purchase terms, or whether the transaction, though taking that form, was nothing more than a loan of money on the security of the goods.

9. It is not suggested that any statute in this country provides a motive to camouflage the giving of a security as the effecting of a sale. There is no reason, therefore, for any assumption that the documents do not represent the true state of affairs.

10. In Olds Discount Co., Ltd. v. Cohen (1938) 3 All E.R. 281, Potter, J., dealt with the matter as follows :

What one has to remember-and I think that this might be said of almost all bodies which finance hire-purchase agreements (and they are very numerous at the present time)-is that their real function is the leading of money, and it must necessarily be so. Although that may be the object and the intention for which they exist, the question is not with what object, they employed their money, but the method they have of employing it. If the method employed constitutes a sale, then the transaction is not only the lending of the money but also a purchase of the goods, even though it is only for the purpose of lending money that it is being done in that way.

To the same effect is British Railway Traffic and Electric Co. v. Khan (1921) W.N. 52. In that case Rowlatt, J., held that 'in cases of this description it did not matter that what the hirer really wants is to obtain a loan, if he in fact carries out the transaction by means of a real sale and a real hiring back.'

11. A case identical to the one before us is Commercial Credit Corporation (1943) Ltd. v. Deputy Commercial Tax Officer A.I.R. 1958 Mad. 561. In that case Rajagopalan, Officiating C.J., and Kajagopala Ayyangar, J., said :

To sustain the efficacy of the hire-purchase agreement and indeed to serve as its very basis, the petitioners had to obtain title to that vehicle ; and to deny the existence or the reality of the sale which the acquisition of title involved, would really be not to construe the transaction between the parties, but rather to fashion one for them.

12. There is no doubt that the object of the arrangements is ithe obtaining of credit. Exhibit B1, the application makes this abundantly clear. So does the difference between the price at which the customers buy the vehicles and the price at which they immediately sell them to the company. The former is invariably higher than the latter. But this does not mean that the parties cannot, or will not, so arrange the transactions as to bring about a sale by the customers to the company coupled with the promise of a resale by the company to the customers and the termination of the arrangements.

13. Exhibits B2, B3 and B4, sale letter, bill and receipt respectively, are only consistent with the effecting of a sale by the customers to the company. Exhibit B5, the hire-purchase agreement, also proceeds on the basis that there has been a sale by the customers to the company. We are unable to find anything in that agreement or in exhibits B6, B7 and B8 which militates against the reality of a sale.

14. Exhibit B9 designates the customers as the owners of the vehicles in spite of the fact that the sale by them to the company has already taken place. This is because exhibit B9 is an application for making a note of the hire-purchase agreement in the registration certificate under the Motor Vehicles Act, 1939. The expression 'owner' is defined in Section 2(19) of that Act, and under that definition the expression means in relation to a motor vehicle which is the subject of a hire-purchase agreement 'the person in possession of the vehicle under that agreement.'

15. We entertain no doubt that exhibits B1 to B9 indicate real sales by the customers to the company, that what happens at the termination of arrangements are resales by the company to its customers and that the said resales attract sales tax under the General Sales Tax Act, 1125, as held by the Department. It follows that the petition has to be dismissed and we do so, though in the circumstances of the case without any order as to costs.


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