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Rajasthan High Court · body

2004 DIGILAW 1514 (RAJ)

Jawala Singh v. State Bank of Bikaner and Jaipur

2004-10-13

K.S.RATHORE

body2004
Honble RATHORE, J.–Brief facts of the case are that the petitioner is an agriculturist and having land bearing Khasra No. 75, 91, 214, 215, 216, 226 and 241 total land measuring 18 bigha 10 biswa. The petitioner had taken loan from the respondent Bank to the tune of Rs. 40,000/- for purchase of a tractor. It is alleged that he has deposited Rs. 44,700/- upto 13.1.1987 against the loan taken by him, but in a malafide manner without giving any opportunity of hearing and without explaining the accounts and by taking benefit of illiteracy, the tractor bearing No. RJA 7449 was initially attached and given to one Pahalwan Singh and subsequent to that an additional amount of Rs. 10,000/- was also deposited by the petitioner, inspite of that, the proceedings of attachment was undertaken and without due process of law and in an illegal manner, aforementioned agricultural land of the petitioner was subjected for auction on 29.1.85 and in the auction respondent No. 3 has purchased the land in question. (2). Learned counsel for the petitioner further submits that the auction proceedings, which was initiated by the respondents was totally an eye wash wherein one of the Class IV employee of the S.D.O. Office had participated and rest were unidentified persons having fictitious names. In such circumstances, the entire auction proceedings were illegal and in violation of the provisions of the Act. (3). Learned counsel for the petitioner also challenged that the land, which was mortgaged in favour of the bank has been auctioned on meager amount to the tune of Rs. 32,000/- whereas cost of the land was at least five times than the aforesaid amount. (4). It is also submitted by learned counsel for the petitioner that the auction was taken place on 29.1.85 whereas on 31.1.85 an application came to be moved by respondent No. 3 auction purchaser wherein it has been mentioned that he had purchased the disputed agricultural land through an agreement to sale dated 18.9.91 and he would deposit the amount as settled under the said agreement upto 20.2.85 and he had always been ready and willing to fulfill the terms and conditions of the said agreement to sale dated 18.9.81. (5). It is also submitted that the sale consideration under the said agreement was to the tune of Rs. 65,000/-. (5). It is also submitted that the sale consideration under the said agreement was to the tune of Rs. 65,000/-. In such facts and circumstances, it is apparent on the face of the record that auction proceedings were not actually taken place on 29.1.85 otherwise there was no occasion for respondent No. 3 auction purchaser to move an application on 31.1.85. (6). The petitioner preferred an appeal before the Revenue Appellate Authority against the order dated 13.1.87. It is also given out at Bar that this appeal has been filed before the Revenue Appellate Authority on wrong advise of a counsel, therefore, the same was withdrawn and the petitioner preferred an appeal before the Additional District Judge, Kishangarhbas, who had accepted the same vide judgment dated 3.10.2001 and directed that if the petitioner deposits Rs. 70,000/- with the prescribed authority, he will be having a right to get the revenue record changed in his name. The requisite amount to the tune of Rs. 70,000/- was deposited by the petitioner on 29.10.2001. (7). Against the judgment dated 3.10.2001 the respondent No. 3 preferred S.B. Civil Writ Petition No. 5215/2001 before this Court and the same was decided vide judgment dated 2.5.2002. While deciding the writ petition filed on behalf of the respondent No. 3 this Court vide judgment dated 2.5.2002 observed as under: ``During the course of arguments learned counsel for the respondents submits that the may be given liberty to challenge the order passed by the Prescribed Authority before the appropriate forum since the petitioner is filed by the auction purchaser and on merit the respondents is able to establish this case. The auction, which was carried out by the respondents is per se illegal. Since in this petition only legal issue is involved, without going into the merit of the case, I deem it proper to decide on the legal issue whether the order passed by the Prescribed Authority is appellable before the Civil Court or not? As already discussed herein above in view of the judgment in the case of Ladulal Jain passed by this Court after considering the case of Daulat Ram, the appeal against the Prescribed Authority is not maintainable. As already discussed herein above in view of the judgment in the case of Ladulal Jain passed by this Court after considering the case of Daulat Ram, the appeal against the Prescribed Authority is not maintainable. In the interest of justice the order passed by the civil court dated 3.10.2001 is set aside in view of the judgment of Ladu Lal Jain and the respondent No. 4 auction purchaser is given liberty to challenge the order passed by the Prescribed Authority before the appropriate forum. For the purposes of limitation since the time consumed in filing appeal before the civil court, under the bonafide belief and in view of the Daulat Rams case the appeal before the Civil Court is maintainable. The case of the respondent No. 4 shall not be rejected only on the ground of limitation. In view of the aforementioned observations the order dated 3.10.2001 passed by the civil court is set aside and the writ petition is allowed with no order as to costs. (8). This Court vide its judgment dated 2.5.2002 has set aside the order passed on 3.10.2001 by the civil court and the liberty has been given, therefore, present writ petition has been filed by the petitioner. (9). (8). This Court vide its judgment dated 2.5.2002 has set aside the order passed on 3.10.2001 by the civil court and the liberty has been given, therefore, present writ petition has been filed by the petitioner. (9). The petitioner being aggrieved and dissatisfied by the entire proceedings initiated under Section 13 of the Act of 1974 filed the present petition and he referred Section 13 of the Act of 1974, which is reproduced hereunder: ``Recovery of dues of a bank through a Prescribed Authority: (1) Notwithstanding anything contained in any law for the time being in force, an official of the State Government notified by the State Government as the prescribed authority for the purpose of this section may, on the application of a bank, make an order on or any agriculturist or his heir or legal representative, directing the payment of any sum due to the bank on account of financial assistance availed of by the agriculturist, by the sale of any land or interest therein or any other immovable property, upon which the payment of such money is charged or mortgaged: Provided that no order shall be made by the prescribed authority under this sub-section for the sale of any interest therein or any other immovable property upon which the payment of money is charged or mortgaged as the case may be, unless the agriculturist or the heir or legal representative of the agriculturist, as the case may be has been given an opportunity of being heard and has been served with a notice by the prescribed authority calling upon him to pay the amount due and default has been made in payment thereof for three months after the determination of liabilities by such authority. (2) Every order passed by the prescribed authority in terms so sub-section (1) shall be deemed to be a decree of a civil court and shall be executed by him in the same manner as a decree of such court. Explanation- for the purpose of exercising powers conferred by this sub-section the prescribed authority shall be a civil court. (3) Nothing in this section shall debar a bank from seeking to enforce its rights in any other manner under any other law for the time being in force. (10). Explanation- for the purpose of exercising powers conferred by this sub-section the prescribed authority shall be a civil court. (3) Nothing in this section shall debar a bank from seeking to enforce its rights in any other manner under any other law for the time being in force. (10). By referring Section 13, which deals with the recovery of dues of a bank through a Prescribed Authority he more particularly read over the proviso of Section 13 sub-section (1). As per the proviso no order shall be made by the prescribed authority under this sub-section for the sale of any interest therein or any other immovable property upon which the payment of money is charged or mortgaged as the case may be, unless the agriculturist or the heir or legal representative of the agriculturist, as the case may be has been given an opportunity of being heard and has been served with a notice by the prescribed authority calling upon him to pay the amount due and default has been made in payment thereof for three months after the determination of liabilities by such authority. (11). Learned counsel for the petitioner gave much emphasis on the aspect that as per the mandatory provisions of Section 13 petitioner has not been provided any opportunity to deposit the amount, which has been determined. Not only this he raised the objection that the Prescribed Authority has not even determined the amount, which is required to be deposited by the petitioner. (12). Petitioner also demonstrated before this Court that the auction proceeding, which is said to be taken place on 29.1.1985 whereas the application on behalf of the auction purchaser has been given on 31.1.85 wherein the auction purchaser shown his willingness to purchase the said land by way of agreement to sale and he undertook to deposit the entire outstanding amount, which is due against the petitioner. By illustrating this question he tried to formulate the argument that the auction proceeding has not been properly conducted and the entire proceeding, which has been conducted by the Prescribed Authority stands vitiated. (13). It is also given out by learned counsel for the petitioner that respondent No. 3 was agreed to purchase the land in question against the consideration of Rs. 65,000/- whereas the Prescribed Authority has received through auction an amount of Rs. 32,000/- only. (13). It is also given out by learned counsel for the petitioner that respondent No. 3 was agreed to purchase the land in question against the consideration of Rs. 65,000/- whereas the Prescribed Authority has received through auction an amount of Rs. 32,000/- only. On this count also the petitioner challenged the auction proceedings. (14). Learned counsel for the petitioner further raised the legal issue as to how the Asstt. Collector can delegate the power to Naib Tehsildar. To show this he has drawn the attention of this Court towards the order sheets filed by the petitioner wherein the order sheets are signed by the Naib Tehsildar. On this count also the petitioner has challenged the entire proceedings initiated under the provisions of the Act 1974. (15). Learned counsel for the petitioner also submits that the review petition filed by the petitioner alleging all the grounds has not been properly decided by the Prescribed Authority and without assigning any reason the review petition has been decided. He further submits that in view of the direction issued by the Addl. District Judge he has already deposited Rs. 70,000/- and that is lying with the Addl. District Judge. He also placed the Jamabandi for perusal of this Court to show that Jawala Singh -petitioner is the only khatedar tenant although the land was jointly taken from the bank in the name of three brothers. (16). Per contra learned counsel for the bank Mr. Garg submits that this present petition is not maintainable. It is further submitted that the petitioner along with Shri Hardutt Singh and Raja Singh, sons of Shri Kalu Singh jointly submitted an application for asking loan from the respondent bank and in the application the land offered to mortgage 38 bighas 10 biswas in the village Chhapar and the land 12 bigha 17 biswas in village Jakhopur, Tehsil Tizara. The respondent bank placed the application Annex.R-1/1 and also placed a letter by which this loan was sanctioned. Since the petitioner along with Hardutt Singh and Raja Singh borrowed the loan, the loan was jointly sanctioned to them. This is also given out that the insurance was jointly in the name of the petitioner, Hardutt Singh, and Raja Singh and copy of the cover note is also submitted along with the reply. Since the petitioner along with Hardutt Singh and Raja Singh borrowed the loan, the loan was jointly sanctioned to them. This is also given out that the insurance was jointly in the name of the petitioner, Hardutt Singh, and Raja Singh and copy of the cover note is also submitted along with the reply. The land which was offered by all the three persons as collateral security, notice for demand was also issued in the name of three borrowers and one of the copy of such notice is also annexed with the reply as Annex.R-1/7 by which the petitioner and his brothers were asked to deposit the installments. Since the due amount was not paid, therefore, the recovery application was submitted under Section 13(1) of the Rajasthan Agricultural Credit Operation (Removal of Difficulties) Act, 1974 and Rules, 1976 of the Rajasthan Agricultural Credit Operations (Removal of Difficulties Act) was also sent in the name of three borrowers. (17). It is further submitted that the respondent bank has sanctioned Rs. 46,000/- for purchase of tractor and Rs. 4,710/- as crop loan in order to purchase seeds and fertilizers on 8.10.77. (18). It is also disputed by learned counsel for the respondents that no notice whatsoever has been given by the bank. Prior to making application under Section 13 (1) the bank has issued several notices and reminders and the same have been served and field staff personally requested the borrowers to deposit the outstanding amount. Since they have failed to make the payment of the outstanding amount the SDO has initiated the proceedings by invoking the provisions of the Act 1974. (19). It is not disputed by learned counsel for the respondents that the proceedings taken by the SDO was challenged by filing the appeal before the Addl. District Judge. The appeal has also been filed before the Revenue Appellate Authority and the petitioner has withdrawn the appeal filed before the Revenue Appellate Authority. The Addl. District Judge has allowed the appeal, which is said to be beyond jurisdiction. (20). The fact with regard to participation of Class IV employee of SDO Office is also vehemently denied by the respondents. The appeal has also been filed before the Revenue Appellate Authority and the petitioner has withdrawn the appeal filed before the Revenue Appellate Authority. The Addl. District Judge has allowed the appeal, which is said to be beyond jurisdiction. (20). The fact with regard to participation of Class IV employee of SDO Office is also vehemently denied by the respondents. On the contrary it is given out by learned counsel for the bank that despite of this fact that the tractor was mortgaged with the bank, the petitioner has sold the tractor, for this sale an FIR has been lodged by the bank officials against the petitioner. (21). Learned counsel for the respondent-Bank also strongly disputed with regard to the agreement to sale in favour of respondent No. 3. The consideration was fixed for Rs. 65,000/- and it is submitted that the auction has been taken place in the year 1987. The sale proceedings is also confirmed and land in question is also handed over to the auction purchaser. (22). So far as the challenge of the order passed by the Addl. District Judge in the writ petition is not disputed by the respondents as stated by learned counsel for the petitioner. Learned counsel for the bank further submits that the bank has rightly initiated the proceedings against the petitioner under Section 13 of the Act under the compelling circumstances as the petitioner failed to deposit the outstanding amount. The auction proceedings was taken place as back in the year 1985 itself and now at this belated stage the petitioner cannot challenge the proceedings initiated by the respondents even on the ground of validity of the proceedings. (23). It is further submitted that on the date of the receipt of the proceedings of the auction a sum of Rs. 29,059.19 was due against the borrowers and the respondent bank is entitled to recover this amount alongwith further and pendentelite interest at the agreed rate of interest. (24). Learned counsel for the respondents reiterated this fact that the auction had taken place in the month of January, 1985 and the present writ petition has been filed in the year 2002. The petitioner is not entitled to have any advantage in view of the order passed in the writ petition No. 5215/2001 as the writ petition No. 5215/2001 has been filed by Shri Hukum Chand and not by the petitioner. The petitioner is not entitled to have any advantage in view of the order passed in the writ petition No. 5215/2001 as the writ petition No. 5215/2001 has been filed by Shri Hukum Chand and not by the petitioner. The benefit with regard to the sale proceedings has been given by this Court to Shri Hukum Chand only and not to the petitioner and by the order passed by this Court the advantage is available for the period consumed in the civil court and the appeal before the learned ADJ has been filed in the year 1988. The petitioner has also not submitted all the relevant records along with the writ petition and the respondent bank has tried to obtain the record but the same could not be made available. In view of this fact present petition is not maintainable and deserves to be dismissed. (25). Learned counsel for the auction purchaser Mr. A.L. Verma also followed the submissions made on behalf of the respondent bank. In addition to the arguments he submits that this petition is otherwise not maintainable as the petitioner has got remedy to invoke the jurisdiction of the Order 21 Rule 89, which is reproduced as under: ``Application to set aside sale on deposit-(1) Where immovable property has been sold in execution of a decree, [any person claiming an interest in the property sold at the time of time sale or at the time of making the application, or acting for or in the interest of such person,] may apply to have the sale set aside on his depositing in Court,- (a) for payment to the purchaser, a sum equal to five percent of the purchase-money, and (b) for payment to the decree-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree- holder. (2) Where a person applies under rule 90 to set aside the sale of this immovable property, he shall not, unless he withdraws his application, be entitled to make or prosecute an application under this rule. (3) Nothing in this rule shall relieve the judgment-debtor from any liability he may be under in respect of costs and interest not covered by the proclamation of sale. (3) Nothing in this rule shall relieve the judgment-debtor from any liability he may be under in respect of costs and interest not covered by the proclamation of sale. By referring Rule 89 learned counsel for the auction purchaser submits that the application to set aside sale on the property has been sold in execution of a decree at the time of sale or at the time of making the application the person can apply under Rule 90 to set aside the sale of immovable property. (26). He also referred Rule 90 which deals with the application to set aside sale on ground of irregularity or fraud and such application can only be made within the period of 60 days. (27). In support of his submissions he referred Art. 127 of the Limitation Act. As per Art. 127 of the Limitation Act to set aside a sale in execution of a decree, including any such application by a judgment debtor 60 days limitation is prescribed, which is further substituted by the Act of 1976 as 30 days. (28). As the petitioner has not challenged the auction sale even on the ground of the irregularities well within time, therefore, at this stage the petitioner cannot challenge the same. He further submits that he being auction purchaser on account of the payment of entire auction money he has been given the possession of the land in question and till date he is holding possession of the land. (29). Mr. A.L. Verma also referred the judgment rendered by the Allahabad High Court in the case of Munni Lal vs. Smt. Sona & Ors. (1). More particularly he referred para 23 of the judgment. In para 23 the Allahabad High Court has held that the judgment debtor can seek setting aside of the auction sale on the basis of the deposit made by him on 30th July, 1976 and 5th July, 1978. Admittedly, the auction sale took place on 13.5.69. In order to seek cancellation of the sale, under Order 21, Rule 89 the deposit should have been made within a period of thirty days from the date of auction sale. This period cannot be extended as held in Rameshwar Misser vs. Sureshwar Misser (2). (30). Admittedly, the auction sale took place on 13.5.69. In order to seek cancellation of the sale, under Order 21, Rule 89 the deposit should have been made within a period of thirty days from the date of auction sale. This period cannot be extended as held in Rameshwar Misser vs. Sureshwar Misser (2). (30). The Allahabad High Court while consider Order 21 Rule 89, 90 and 91 has further held that the judgment debtor for seeking setting aside the auction sale under O.21, R.89 has to make the deposit within a period of 30 days from the date of auction sale and the time cannot be extended by the court. (31). By referring this judgment Mr. A.L. Verma submits that even after this auction took place the petitioner have a right to deposit the entire sale money within the period of 30 days from the date the auction took place. Admittedly the petitioner also not rightly invoked the jurisdiction, which is vested under Order 21 Rule 89 and 90 well within time as specified under Art. 127 of the Limitation Act. Thus the respondent No. 3 is a bonafide auction purchaser and the auction proceedings is also taken place as back as in the year 1985. (32). Heard rival submissions of the respective parties, perused the material available on the record as well as the judgments, provisions of CPC, relevant provisions of Rajasthan Agricultural Credit Operation (Removal of Difficulties) Act, 1974, provisions of Order 21 Rule 89 & 90 and Art. 127 of the Limitation Act. (33). First of all I like to deal with Section 13 of the Act 1974, which is more particularly referred by the petitioner. As per Section 13 it is no doubt it has been made clear that the prescribed authority may give an opportunity of being heard and after serving such notices and after calling upon him to pay the amount, which is shown due against the defaulter, thereafter, in case the defaulter fails to make the payment, which is shown outstanding or due against the defaulter then only the prescribed authority can take action under Section 13 sub-section (1). (34). The petitioner has given emphasis that he has not been given any opportunity of hearing even he is not aware of the auction proceedings. (34). The petitioner has given emphasis that he has not been given any opportunity of hearing even he is not aware of the auction proceedings. To examine the aspect whether he has been served with the notice or not, Annex.1, which has been placed by the petitioner himself dated 13.2.83 and 9.3.84 clearly indicates that the auction proceedings, which has been taken place and since the auction bid was not given by anybody, therefore, the petitioner was restrained not to dispose of the crop as well as the land. Further the notice was given to the petitioner with regard to the sale of the tractor and the FIR to this effect was also lodged against the petitioner. It shows that knowingly the petitioner has sold the tractor, which is pledged with the respondent bank vide Annex.2 dated 30.8.84. By Annexs.3 and 4 several notices through publication has been published regarding auctioning the land. (35). Now the question remains whether the petitioner is asked to deposit the amount outstanding against the petitioner or not. It is not disputed that the loan, which has been taken from the respondent bank is in joint account and learned counsel for the bank has been able to place the notices, which are issued by the bank to the petitioner and other borrowers to call upon to deposit the outstanding amount and the amount is also shown in these notices. (36). The submissions made on behalf of the petitioner is also not acceptable as the petitioner moved a review petition before the SDO Kishangarhbas on 13.1.87 wherein he admitted that he has taken the loan of Rs. 40,000/- for purchase of tractor. He has also given the details of deposits made on their behalf. He raised the legal issues in the review petition also regarding the provisions of Section 13 of the Act. But nowhere it has been specifically mentioned that no notice whatsoever is given to the petitioner. It is only narrated in para No. 11 that the petitioner came to know about the entire proceedings through his relative Darshan Singh, who has informed by letter dated 11.1.87 and the petitioner at the relevant point of time was not in Rajasthan and was in Punjab to arrange the money to deposit with the bank. (37). It is only narrated in para No. 11 that the petitioner came to know about the entire proceedings through his relative Darshan Singh, who has informed by letter dated 11.1.87 and the petitioner at the relevant point of time was not in Rajasthan and was in Punjab to arrange the money to deposit with the bank. (37). The petitioner and his brothers have not challenged this proceeding and they stood satisfied with the auction proceedings, which was taken place and the confirmation is also made. Only the petitioner at such belated stage has challenged the validity of proceedings initiated by the SDO. (38). Considering the submissions made in the review petition itself if the petitioner bonafidely wanted to challenge the proceedings, he would have challenged at the relevant point of time in the year 1987 when he came to know about this fact and could have filed the application for condonation of delay under the Limitation Act and the auction proceedings can be challenged by invoking the provisions of Order 21 Rule 89 and 90. Admittedly the petitioner has not challenged the proceedings before the right forum as the petitioner himself admitted that on the wrong advise he has filed the appeal before the wrong court. Considering all the facts at this belated stage the plea, which has been taken by the petitioner cannot be accepted and after lapse of more than 16 years settled proposition cannot be unsettled. (39). Considering the submissions of the learned counsel for the petitioner that pursuant to the order passed by the Addl. District Judge he has deposited Rs. 70,000/- he can move the proper application before the court concerned for seeking refund of the amount, which has been deposited pursuant to the direction issued by the Addl. District Judge as this Court vide its judgment dated 2.5.2002 set aside the order dated 3.10.2001 passed by the civil court. (40). In view of the discussions made herein above, I find no substance in the writ petition. Consequently, the writ petition fails and is herewith dismissed with no order as to costs.