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1988 DIGILAW 72 (PAT)

Tan Shyam Narain Singh v. State of Bihar

1988-03-01

S.B.SINHA

body1988
JUDGMENT S.B. Sinha, J. In this writ application the petitioner has prayed for quashing of the requisition dated 5.7.1977 as contained in Annexure-1 to the writ application and the proceeding in Certificate Case no. 329 of 1981-82, the order-sheet whereof is contained in Annxure-2 to the writ application as also, the order dated 7.9.1982, passed by respondent no. 2 in the aforementioned case as contained in Annexure-4 to the writ application. 2. The facts of the case lie in a very narrow compass. On 3.4.1973, Central Bank of India, Sitamarhi Branch advanced a sum of Rs. 4,412.06 to the petitioner for purchase of a pumping set. The respondent no. 4, allegedly as the said amount was not recovered, sent a requisition before the Certificate officer in terms of the provisions of Bihar and Orissa Public Demand Recovery Act, 1914 (hereinafter referred to as 'the Act'). On 5.7.1977 pursuant to or on the basis of the said requisition as contained in Annexure-1 to the writ application, a certificate proceeding was initiated. In the said certificate proceeding, the Court fee was deposited on 25.4.1982 and a notice was sent in the name of the father of petitioner on 31.5.1982 and then a communication was sent to the petitioner in that regard. The petitioner received the aforementioned communication on 9.6.1982 and then proceeded to Sitamarhi and filed an objection. But as the said petitiol1 was not signed, another application was filed on 29.6.1982. However, the respondent no. 2 after perusal of the said objection directed the petitioner to deposit a sum of Rs. 40% of the amount of certificate, the said order is contained in Annexure-4 to the writ application. 3. In this writ application a counter affidavit has been filed on behalf of respondent nos. 2 and 3, but no counter affidavit bas been filed on behalf of respondent no. 4 nor any show cause has been made on its behalf. 4. Mr. Vyas Muni Singh, appearing on behalf of the petitioner submitted that admittedly the loan was granted on 3.4.1973, but item no. 15 in the first schedule appended to the said Act was inserted only by Act no. 7 of 1974. Mr. Singh has further submitted that from a perusal of the order-sheet as contained in Annexure-2 to the writ application, it does not appear that after the coming into force the Bihar Act no. 15 in the first schedule appended to the said Act was inserted only by Act no. 7 of 1974. Mr. Singh has further submitted that from a perusal of the order-sheet as contained in Annexure-2 to the writ application, it does not appear that after the coming into force the Bihar Act no. 7 of 1974, there had been any agreement by and between the petitioner and M/s Central Bank to the effect that the advance made by the Bank in favour of the petitioner can be realised by initiating a proceeding under the said Act. Even in terms of Item No. 5 (ii) of the Schedule appended to the said Act any money payable to the Bank specified in column no. 2 of the first schedule of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 becomes a public demand provided there exists a written instrument for the same and only in such an event its dues shall be recoverable as a public demand. 5. It is needless to point out that the aforementioned Act has been declared intra vires by a decision of this Court in the case of Sanwarmal Choudhary and ors. vs. The State Bank of India and others ( 1986 PLJR 660 ). 6. In view of the points involved in this case and as referred to hereinbefore that as to whether a certificate proceeding can be initiated in respect of the loan which was granted on 3.4.1973 and further whether there exists a written instrument in terms of Item no. 15 appended to the 1st schedule of the Bihar and Orissa Public Demand Recovery Act have to be considered by respondent no. 3. In this view of the matter it will be proper if the same is re-considered by him. It is further made clear that before doing so the respondent no. 3 shall give an opportunity of hearing to the petitioner as also the certificate bolder and further allow the parties to raise all questions including the questions mentioned hereinbefore i.e. whether the demand in question was a public demand within the provisions of the said Act or not. 7. In the result this writ application is allowed and the order as contained in Annexure-2 and 4 are hereby set aside and the order under section 10 passed by the respondent no. 7. In the result this writ application is allowed and the order as contained in Annexure-2 and 4 are hereby set aside and the order under section 10 passed by the respondent no. 3 as contained in Annexure-2 to the writ application as also unnexure-4 are hereby set aside and the respondent no. 3 is directed to pass a fresh order. In the facts and circumstances of the case there will be no order as to costs.