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1997 DIGILAW 369 (PAT)

Santosh Kumar Narnolia v. State of Bihar

1997-05-06

B.P.SINGH

body1997
Order I had heard the parties on 11-4-1997, and had indicated an order in Court. When the order was placed before me in draft, I felt the need to hear the parties further, as to the directions to be given in the writ petition. Accordingly, the matter was placed before me under the heading to be mentioned today and I have again heard counsel for the parties. The writ petition is disposed of by an order recorded separately. Heard counsel for the parties. 2. The petitioner herein is the proprietor of the firm M/s Sri lakshmi Textiles. It is not disputed that the Central Bank of India, Dumka Branch (respondent no. 4 herein) had extended to the said firm a cash credit facility of Rs. 50,000/-, which was subsequently enhanced to Rs. 75,000/-. Since the firm failed to discharge its liability to the respondent-Bank, Certificate Case No. 243/94-95 for realisation of Rs. 2,10,149.74 paise was initiated against the petitioner. In the said proceeding the petitioner filed his objection under Section 9 of the Bihar and Orissa Public Demands Recovery Act, and prayed that he may be directed to liquidate the dues outstanding in monthly instalments of Rs. 500/-. The Certificate Officer directed the petitioner to deposit Rs. 10,000/- in the first instance and thereafter the question of payment in instalments may be considered. It is also not disputed that the petitioner deposited the aforesaid sum of Rs. 10,000/-, and again renewed his prayer for fixing of instalment of Rs. 500/- per month. The prayer of the petitioner was not accepted by the Certificate Officer, who directed him to deposit at the rate of Rs. 1250/- per month for the time being, till the Certificate Officer considered the point-wise reply of the Bank to the objection filed by the petitioner under Section 9 of the Act. The petitioner started depositing at the rate of Rs. 1250/- per month. After considering the rejoinder tiled by the Bank to the objection filed by the petitioner, respondent no. 3 directed the petitioner to deposit a sum of Rs. 2200/- per month by his order dated 6-12-1995. It also appears from the order of the Certificate Officer dated 6-12-1995 that the petitioner had appeared through his counsel and admitted the dues claimed by the Bank. The petitioner, therefore, started depositing at the rate of Rs. 2200/- per month. 3 directed the petitioner to deposit a sum of Rs. 2200/- per month by his order dated 6-12-1995. It also appears from the order of the Certificate Officer dated 6-12-1995 that the petitioner had appeared through his counsel and admitted the dues claimed by the Bank. The petitioner, therefore, started depositing at the rate of Rs. 2200/- per month. The petitioner was, however, surprised to receive a notice on 8-11-96 informing him that the facility granted to the petitioner to pay the outstanding dues in instalments had been withdrawn, and he was directed to deposit at least Rs. 50,000/- per month with the concerned Bank. The said intimation received by the petitioner has been annexed as Annexure-5, which has been challenged in the instant writ petition. 3. A counter-affidavit has been filed on behalf of the Bank, and it is contended that the Bank had objected to instalments being fixed at the rate of Rs. 1250/-, as that was not even sufficient to cover the statutory rate of interest payable by the certificate debtor. However, by order dated 6.12.1995 the Certificate Officer had directed the petitioner to deposit at the rate of Rs. 2200/- per month, which was very low in view of the fact that it was not even sufficient to cover the liability by way of interest, which was payable at the rate of 12 percent per annum on the entire certificate dues. The grievance of the Bank is that if outstanding dues were to be repaid in instalments of Rs. 2200/- per month, the liability could never be discharged, because monthly instalment fixed by the Certificate Officer was hardly sufficient to meet the liability of interest which accrued on the amount due to the Bank. It was under these' circumstances that the Certificate Officer reviewed his earlier order under Section 63 of the Bihar and Orissa Public Demands Recovery Act, when he realised that he committed a mistake and his order was not consistent with the Government circulars and directives in this regard. 4. It appears that by order dated 18.2.1997 the Certificate officer was called upon to explain under what circumstances he had fixed monthly instalment of Rs. 2200/- only for the liquidation of certificate dues amounting to Rs. 2 lacs, and under what circumstances he had passed exparte order of review recalling the earlier order fixing instalments for the payment of the certificate amount. 2200/- only for the liquidation of certificate dues amounting to Rs. 2 lacs, and under what circumstances he had passed exparte order of review recalling the earlier order fixing instalments for the payment of the certificate amount. It appears from the order of this Court dated 17.3.1997 that the Certificate Officer appeared in person and submitted that the order fixing a monthly instalment of Rs. 2200 was passed by him without realising that the amount of instalment merely covered the statutory interest on the certificate amount. He expressed his regret and gave an assurance to the Court that such mistakes would not recur in future. 5. Counsel for the petitioner submits that once the Certificate Officer had fixed the instalment for repayment of the dues, he had no power to review his order, particularly when the Bank had not appealed against his order. Counsel submits that the order passed by the Certificate Officer (Annexure-5) was passed in violation of the principles of natural justice, inasmuch the petitioner was not afforded an opportunity of representing his case before the Certificate Officer. 6. I have carefully perused the record placed before me. The liability to pay the amount claimed by the Bank is not disputed and, therefore, it is apparent that the petitioner is liable to pay to the Bank a sum of Rs. 2 lacs approximately, and further to pay the interest accruing on the said amount at the rate of 12 percent per annum claimed by the Bank. If the said liability is to be liquidated by repayment of the dues in monthly instalment of Rs. 2200/-, it would take several decades for the liability to be discharged, because the instalment fixed by the Certificate Officer merely covers the interest payable by the petitioner. Very little, if at all, is left to discharge the liability towards the principal amount. I have, therefore, no doubt that the Certificate Officer acted illegally and improperly in directing the petitioner to discharge the liability by making payments at the rate of Rs. 2200/- per month. The rights of the Bank are defeated if the said order (Annexure 4/A) is not quashed. I am, therefore, satisfied that this is not a proper case for exercise of writ jurisdiction, because if the order (Annexure 4-A) directing the petitioner to discharge the liability by making payment at the rate of Rs. 2200/- per month. The rights of the Bank are defeated if the said order (Annexure 4/A) is not quashed. I am, therefore, satisfied that this is not a proper case for exercise of writ jurisdiction, because if the order (Annexure 4-A) directing the petitioner to discharge the liability by making payment at the rate of Rs. 2200/- per month is upheld, the right of the Bank to recover the dues is almost defeated. The order (Annexure 4-A) is apparently an illegal order, which cannot be justified in the facts of the case, and the said order should not be revived by granting the relief as prayed for by the petitioner. 7. It is not as if the Certificate Officer has no power to review the orders passed by him. Section 63 of the Bihar and Orissa Public Demands Recovery Act provides that any order passed under this Act may, after notice to all persons interested, be reviewed by the officer who made the order on account of mistake or error either in making of the certificate or in the course of any proceeding under this Act. The Certificate Officer by passing the order (Annexure-5) has apparently tried to correct the error earlier committed by him. I have no doubt, therefore, that the earlier order passed by the Certificate Officer deserves to be reviewed. 8. The question that remains to be considered is whether the Certificate Officer was justified in passing the impugned order (Annexure-5) without notice to the petitioner. In any view, even if there was good reason to review the order earlier passed, namely, Annexure 4-A, in fairness, the petitioner ought to have been heard before any order reviewing the earlier order was passed. After hearing the petitioner, as also the Bank, the Certificate Officer could have determined the manner in which the petitioner could be directed to liquidate the outstanding dues, and the amount which the petitioner could be directed to pay in instalments. 9. Having regard to the interest of justice, this writ petition is disposed of with a direction to the Certificate Officer to re-determine the instalments in which the outstanding dues are to be liquidated by the petitioner. To enable him to do so, the impugned order (Annexure-5) is quashed. 9. Having regard to the interest of justice, this writ petition is disposed of with a direction to the Certificate Officer to re-determine the instalments in which the outstanding dues are to be liquidated by the petitioner. To enable him to do so, the impugned order (Annexure-5) is quashed. The petitioner as well as the respondent-Bank through their counsel are directed to appear before the Certificate Officer on 26th May, 1997, so that the Certificate Officer may fix a date of hearing in the matter and thereafter pass an order in accordance with law. The Certificate Officer must take care to see that the instalments fixed are not such that the liability may not be discharged within a reasonable time.