Shaukat Ali v. State Of Bihar — 1994 DIGILAW 196 (PAT)

Judgment Radha Mohan Prasad, J. 1. The petitioner in this writ application prays for quashing of the whole Certificate Proceeding No.1363/bank of 1979-80 pending in the court of the Commi ssioner, Patna (respondent No.2) as also the notice issued therein as contained in Annexure 1 and the orders, as contained in Annexures 2 to 5 of the writ application. 2. In short, the case of the petitioner is that the State Bank of India, kankarbagh Branch, Patna (hereinafter referred to as the Bank) advanced rs.88,500/- to one Saiyed Muztar Imam, who was initially made respondent no.6, but later with the permission of the Court, his name was deleted on 142.1984, for purchase of Mini Bus No. BHP 8575 under Unemployed graduate Scheme. The petitioner, who happens to be relation of said Saiyed muztar Imam, became guarantor as against the said loan. However, later when the said Imam started to avoid repayment of the loan in question, the petitioner vide letter dated 3.7.1979 informed the Bank to take immediate action against said Imam, as a result of which the Mini bus in question was seized by the respondent Bank with the help of the petitioner. It is stated that the petitioner requested the respondent Bank to hand over the bus in question to him on the same terms and conditions on which it was given to Imam but the said bus was auction sold by the Bank on a very low price of Rs.64,000/-. Thereafter for recovery of the balance amount of Rs 11,808 91 inclusive of the interest and miscellaneous expenses, the respondent Bank sent a requisition under the Bihar and Orissa Public demands Recovery Act, 1914 (hereinafter referred to as the Act) whereafter the certificate proceeding in question was initiated against Imam as well as against the petitioner. 3. Thereafter for recovery of the balance amount of Rs 11,808 91 inclusive of the interest and miscellaneous expenses, the respondent Bank sent a requisition under the Bihar and Orissa Public demands Recovery Act, 1914 (hereinafter referred to as the Act) whereafter the certificate proceeding in question was initiated against Imam as well as against the petitioner. 3. On 21.1 1981 the petitioner appeared in the said certificate proceeding and filed a petition denying his liability for payment of certificate money, upon which the Certificate Officer issued warrant of arrest and attachment order against Imam On 13.2 1981 Imam was arrested and produced before the Certificate Officer and inspite of the objection by the petitioner he was released on furnishing bonds for which Safdar Imam and sharfuddin, who were initially made respondents no.7 and 8 in the writ application but later deleted with the permission of the Court on 14.2 1984 as was done in the case of Imam, furnished security to the effect that in default of payment they will he liable for non-payment with further undertaking that they will deposit Rs.3,000/- out of certificate money upto 21-2-1981. However, no money was deposited inspite of the aforesaid undertaking given by Safdar Imam and Sharfuddin. The petitioner has claimed that he several times prayed before the Certificate Officer to take action against the said three persons, including Imam, but no action was taken against them and vide order dated 26 9.1981 (Annex-2) the Certificate officer issued notice for realisation of certificate money from the petitioner. 4. On 1.11.1981 the petitioner received a notice dated 19.10.1981 for payment of certificate money with a threat that the land of the petitioner will be auction sold A copy of the said notice has been annexed as annexure 1. Thereafter the petitioner filed a petition before the Certificate officer on 14.11.1981 to review his order dated 26 9.1981 which was rejected on 28-11-1981. True copies of the said two orders have been annexed as annexures 2 and 3, respectively Against the said two orders the petitioner filed revision under section 62 of the Act before the Collector, Patna (respondent no.3) on the ground that the Certificate Officer had no jurisdiction to initiate proceeding on the requisition submitted by the respondent Bank under section 4 of the Act without depositing Court fee. Further, the petitioner also contended that he is not a certificate debtor, thus, the Certificate Officer had no power to issue notice on him. The said revision wat numbered as Revision Case No.109 of 1981-82. Respondent no 3 vide order dated 153.1982 dismissed the said revision application, against which the petitioner filed Certificate Revision Case No.60 of 1982 before the Commissioner, Patna Division, Patna (respondent no 2) in which it was contended that the certificate holder (respondent no.5) being a corporate body is not entitled to file certificate under section 4 of the Act in form 1 and as such the whole proceeding in question is ab initio void From paragraph 20 of the writ application it appears that it was furtner contended that the Bank being a corporate body should have filed a written requisition before the Certificate Officer under section 5 of the Act after paying the court fee as required under the Act and in absence of the same the whole proceeding is without jurisdiction Thereafter respondent no.2 passed order on 27.9 1983 directing the petitioner to deposit 40% of the certificate amount without which the hearing of the revision could not be done. The said order has been annexed as Annexure 5. 5. A show cause and supplementary affidavit to the said show cause were filed in which it was stated, inter alia, that the initiation of the certificate proceeding is not violative of section 5 (2) of the Act as the requisition of certificate case has been duly signed and verified in the prescribed manner in the prescribed form and for the payment of the requisite court fee an application had been filed on 25.7 1983 and after obtaining it was filed after demand from respondent no.4. In this regard reliance has been placed on the statement of account of the Bank as well as from the lower court record. It is also contended that the demand in the certificate case is legally recoverable under the Act in view of the fact that the petitioner and the borrower duly executed agreement for inclusion of the Bank dues under public demand on 8.4.1977 as also in view of the fact that the petitioner duly executed stamped agreement for guarantee of the loan which makes him liable to pay the same. As regards the allegation regarding auction of the mini bus at a lower price, the same has been denied in paragraph 6. 6. In the supplementary affidavit filed on behalf of the Bank it is stated that the court fee of Rs.1,184/- was deposited on 18.8.1983 and not on 30 12.1983 as wrongly alleged. It is also stated that as the record was not available with the Certificate Officer the fact regarding the deposit of court fee was reeorded on 30 12.1983. Further, it is reiterated that the requisition filed by the certificate holder contained the verification and signature of requisitioning Officer and the Certificate Officer, in support of which certified copy of the same has been annexed as Annexure VII. It is further contended that regarding non-filing of requisition in proper form was not taken in the objection petition filed before the Certificate Officer at the initial stage. However, in paragraph 2 of the second supplementary affidavit filed on behalf of the Bank it is submitted that admittedly, the requisition was filed for initiating certificate case under sections 4 and 6 of the Act which, according to the Bank, will be deemed in the eye of law to be a valid requisition sent by the certificate holder In the alternative, it is, however, contended that in compliance of the requirement under section 5 (2) of the Act, in the aforesaid facts and circumstances, is more an irregularity and as such the certificate proceeding could not be vitiated or liable to be quashed as the said defect is curable and the certificate case could not be declared invalid simply because of the same. 7. Mr. Ram Chandra Jha, learned counsel appearing for the petitioner, submitted that the certificate for the public demand has to be filed in Schedule II under the form prescribed therein. Therefore, unless those formalities are complied with, it cannot be termed as public demand within the meaning of the Act. According to him, for the public demand in question the requisition has to be filed in terms of section 5 of the Act in Form no 2 of Schedule II wherein every requisition made in respect of a public demand payable to any person other than the Collector is to be signed and sent to the Certificate Officer. According to him, for the public demand in question the requisition has to be filed in terms of section 5 of the Act in Form no 2 of Schedule II wherein every requisition made in respect of a public demand payable to any person other than the Collector is to be signed and sent to the Certificate Officer. It is thus contended that the statutory requirement that the Requisitioning Officer, while sending his requisition for certificate to the Certificate Officer must, on verification, say that the sum in respect of which the certificate is sought to be levied is due from the certificate debtor and every such requisition shall be signed and verified by the officer making the requisition. 8. In support of the aforesaid submission Mr Jha placed reliance on a decision of this Court in the case of Tata Engineering and Locomotive Co. Ltd. V/s. The District Mining Officer and Cess Collector (Mining) and another, (1981)BBCJ 149 3 1981 PLJR 86) in which a Division Bench of this Court held that the certificate for the public demand has to be filed in Schedule II under the form prescribed therein and unless those formalities are complied with, it cannot be termed as public demand within the meaning of the Act. It was also held that the authority issuing demand having no authority to assess, the assessment is non-est. He also placed reliance on a decision in the case of Hari Prasad Agarwalla V/s. The State of Bihar and others (1976 pljr 265) wherein a Division Bench of this Court held that every requisition made in respect of a public demand payable to any person other than the collector shall be signed and verified in the manner prescribed and sent to the Certificate officer and that such written requisition in the prescribed form should be sent to the Certificate Officer as also it is of essence to the statutory requirement that the Requisitioning Officer, while sending his requisition for certificate to the Certificate Officer, must, on verification, say that he is satisfied after inquiry that the sum in respect of which the certificate is sought to be levied is due from the certificate debtor. The Court further held that the sheet on which a calculation for the assessment of the loss for breach of agreement has been made and signed by the Divisional Forest Officer cannot be treated to be a requisition for certificate either in pursuance of section 5 of the Act or in the prescribed manner and in Form 2. While placing reliance on Hart Prasad Agarwallas case (Supra), Mr. Jha further submitted that the procedure must be strictly followed and even failure to put signature at due place in the form is vital, and not a mere irregularity. For the said purpose he also placed reliance on a Division Bench judgment of Qrissa High Court in the case of Kaplla charan Rout and others v Sub-Divisional Officer (Civil), Bhadrak and another (AIR 1977 Orissa 100) He also placed reliance on a decision in the case of nirod Baran Banerjeev. The State of Bihar and others (1981 PLJR 186)paragraphs 2, 3 and 4. for the proposition that before initiating the certificate proceeding the Certificate Officer has to be satisfied that the public demand is payable to the Collector. He is also to certify specifically that the demand is due. Reliance was also placed on the decision in the case of Kanhaiyalal Dabriwala v The state of Bihar and others (1982 PLJR 257) for the proposition that where the requisition is by a Bank, the certificate proceeding cannot proceed unless the court-fee has been paid in accordance with the provisions of section 5 (2) of the Act subject to the limitation, if any. 9. On the other hand, Mr. K. N. Gupta, learned counsel appearing for the Bank (respondent no.5) submitted that it is not in dispute that the requisition was filed for initiating a certificate case duly signed by the competent authority but instead of filing of the same in Form 2, it was filed in form 1. Learned counsel submitted that in the facts and circumstances of the present case, at most it can be said to be a case of mere irregularity. Learned counsel submitted that in the facts and circumstances of the present case, at most it can be said to be a case of mere irregularity. In support of this he placed reliance on a Division Berch decision of this Court in the case of M/s. Vishnu Sugar Mills Ltd. V/s. State of Bihar and others (AIR 1974 Patna 75) wherein, in the background of the facts that a certificate proceeding for recovery of arrears of cane price with interest thereon due to cane growers from the sugar Mill was started on the basis of a certificate in form 1 signed by the Collector to this certificate was also appended a certificate signed by the Certificate Officer, the Court held that the certificate issued in Form 1 was in accordance with the provisions of section 4 of the act and the latter part of the recital signed by the Certificate Officer could very well be ignored and can be treated as a mere irregularity. He also submitted that the writ application is fit to be dismissed on the sole ground that the petitioner in order to avoid 40% payment as required under section 62 of the Act has avoided to avail the alternative remedy and has filed the present writ application. In support of the same he placed reliance on a decision of this Court in the case of Krishna Kumar Singh and another V/s. The State of Bihar and others (1980 PLJR 184 ). 10. In my opinion, the submission of the learned counsel for the Bank in regard to availability of alternative remedy cannot be sustained in view of the well settled law that if a writ application is entertained and heard on merits, the High Court would not be justified in dismissing the writ application as not maintainable on the said ground. A reference in this regard may be made to a decision of the Supreme court in the case of L. Hirday Narain V/s. Income Tax Officer, Bareilly ( AIR 1971 SC 33 -para 12) in which the plea that an order under section 35 of the income-Tax Act was revisable by the Commissioner and that there being an alternative remedy, the petitipn was not maintainable, was not accepted by the Supreme Court as the High Court had entertained the petition and heard the same on merit as in the present case. So far as the submissions regarding filing of the requisition in proper form and deposit of the fee are concerned, there cannot be any dispute on the proposition that they have to be strictly followed But from the records, which has been received in this Court, I find that the requisition though appears to have been filed in the form prescribed for filing of requisition under sections 4 and 6 of the Act and not one under section 5 of the Act but from perusal of the said requisition it appears that it has been duly verified in terms of section 5 (2) of the Act. It is not in dispute that the agent of the Bank who has signed the requisition was the competent authority. Further, I find that the said form contains the amount mentioned in both the columns of verification with the dates. 11. In that view of the matter, I find it difficult to hold that the requisition was not made in proper form duly signed and verified by the competent authority Accordingly, I do not find any substance in the first submission of Mr Jha However, Mr. Jha rightly submitted that the Court-fee was not deposited along with the requisition. From perusal of the Court-fee stamp which is placed on the lower court record received in this Court, it appears that the same has been signed by the learned counsel on 18 8.1983 but it appears to have been received by the Certificate Officer on 30 12.1983. Learned counsel for the respondent Bank submitted that the Court-fee stamp was, in fact, drawn and was ready and filled on 18 8.1983 but as the record had been sent to the Deputy Collector-in-Charge, Legal, Patna in connection with a matter pending before the Commissioner, Patna, the fact regarding deposit of Court-fee could not te recorded before 30.12.1983. 12. After going through the order sheet it appears that the record was received back on 19.12.19s3 and from the order recorded on that date, it appears that the Certificate Officer was not certain as to whether the Court-fee had been deposited or not. Thus, he mentioned in the order dated 19.12.1983 as follows ; "up Samaharta vidi Patna Ke Yahan se mool abhilekh prapt Hua bank Duwara Is Bad Mai Court Fee Dakhil Kiya Gaya Pratit nahin Hota Hai. Thus, he mentioned in the order dated 19.12.1983 as follows ; "up Samaharta vidi Patna Ke Yahan se mool abhilekh prapt Hua bank Duwara Is Bad Mai Court Fee Dakhil Kiya Gaya Pratit nahin Hota Hai. " Further, he directed the Bank to deposit the Court fee of Rs.1,035/- by 30th December, 1983. He also directed to issue notice to the certificate holder in this regard and thereafter to place the matter on 30-12-1983 but on 30-12-83 he recorded in the order sheet that the notice, as directed appears to have not been sent and, accordingly, directed the matter to be placed on 28-1-1984. Later it is recorded that the Court-fee had been deposited by the bank-certificate holder but, however, as the matter was pending in this court, further proceeding was stayed awaiting the result. 13. Thus, I find some substance in the submission of the learned counsel appearing for the Bank, especially in the absence of any rebuttal by the petitioner to the statement made in paragraph 2 of the supplementary affidavit filed on its behalf wherein it is stated as follows : "2. That it is submitted that Court fee for a sum of Rs.71,000/- (Rupees seventy one thousand) was drawn from Patna Treasury to deposit Court fee in 500 Certificate cases filed by State Bank of India, Kankarbagh Branch including the present certificate case No 1363-79/80 and Court fee for Rs.1184/- was deposited on 18.8 83 in the said Certificate case. It is wrong to state that court fee was filed on 30.12.83. Since the record was not available before the Certificate Officer, order sheet could not be recorded and the order sheet was recorded on 30.12.83 when the record was received on 19.12.83. This is apparent from Annexure 8 of the petitioners supplementary affidavit. " 14. From the decision of this Court in the case of Kanhaiyalal dabriwala (supra) it appears that the Division Bench only held that where the requisition is of the Bank, the certificate proceeding cannot proceed unless the Court-fee has been paid in accordance with the provisions of section 5 (2)of the Act. " 14. From the decision of this Court in the case of Kanhaiyalal dabriwala (supra) it appears that the Division Bench only held that where the requisition is of the Bank, the certificate proceeding cannot proceed unless the Court-fee has been paid in accordance with the provisions of section 5 (2)of the Act. Sec.5 (2) of the Act reads as follows: "5 (2) Every such requisition shall be signed and verified in the prescribed manner, and, except in such cases as may be prescribed, shall be chargeable with a fee of the amount which would be payable under the Court-fees Act, 1870 (VII of 1870) in respect of a plaint for the recovery of a sum of money equal to that stated in the requisition as being due" From reading of the said provision it is clear that every such requisition shall be chargeable with a fee of the amount which would be payable under the Court-fees Act in respect of a plaint for the recovery of a sum of money equal to that stated in the requisition as being due. 15 However, I do not find that there is any requirement that the fee must accompany the requisition Thus, as I have already found that the court-fee had been duly filed, I do not find any substance in the point argued by Mr. Jha in this regard, as well. 16. Accordingly, I do not find any merit in the writ application and the same is dismissed, but, in the facts and circumstances, there shall be no order as to costs. Petition Dismissed.