Research › Search › Judgment

Allahabad High Court · body

2006 DIGILAW 707 (ALL)

HAR PAL SINGH v. STATE OF UTTAR PRADESH

2006-03-08

S.RAFAT ALAM, SUDHIR AGARWAL

body2006
JUDGMENT By the Court—Heard Sri Ram Autar Varma, holding brief of Sri R.K.Tiwari, the learned Counsel for the appellant. 2. This appeal under Rules of the Court arises against the judgment of Hon’ble Single Judge dated 20.2.2006 passed in Civil Misc. Writ Petition No. 10311 of 2006. 3. It appears that a sum of Rs. 53,234/- was due against the appellant. Consequently, a recovery proceeding was initiated. Aggrieved appellant preferred the aforesaid writ petition challenging the recovery proceeding. The Hon’ble single Judge by the impugned order dismissed the writ petition after recording a finding that no proof in respect of payment of any amount within a period of nine years, towards the said loan which was to the tune of Rupees one lac, has been brought on record by the petitioner-appellant. The Hon’ble Single Judge has further found, on the basis of own averment of the petitioner-appellant, that the loan has not been paid in time which was required to be paid by 1996 and therefore, he has declined to exercise extraordinary equitable jurisdiction under Article 226 of the Constitution and accordingly the writ petition has been dismissed. 4. Learned Counsel for the petitioner-appellant, however, relied on a Full Bench decision of this Court in the case of Sharda Devi v. State of U.P. and others, reported in (2001) 3 UPLBEC 1941 , and that of a judgment of Single Judge of this Court in the case of Akhilesh Kumar Singh and others v. District Magistrate, Jaunpur and others, reported in (2001) 2 UPLBEC 1042 and contended that since the amount is very old, therefore, it is barred by time and as such cannot be recovered by efflux of time. 5. The petitioner has neither disputed the fact that he has obtained loan of Rs. 100000/- from respondent No. 4 in August, 1987 for purchasing tractor for the agricultural purpose, nor it has been said that the entire loan has been repaid. He has explained the circumstances on account whereto he could not pay instalment of the loan amount in time. As per terms of the loan the petitioner has paid an approximate amount of Rs. 200000/- till January 2004 as stated in para 6 of the writ petition. He has explained the circumstances on account whereto he could not pay instalment of the loan amount in time. As per terms of the loan the petitioner has paid an approximate amount of Rs. 200000/- till January 2004 as stated in para 6 of the writ petition. His admission that he could not pay instalment in time, as has been averred in para 10 of the writ petition which is reproduced as under : “That due to aforesaid unavoidable reason petitioner could not repay the instalment on time to the respondent bank.” In these circumstances when admittedly the petitioner was allowed extra time for payment of loan amount and as he himself admitted he paid some instalment upto January, 2004, it cannot be said that the limitation of recovery of loan amount would commence from 1996. From the facts stated in the writ petition it is apparent that last premium towards instalment of the loan amount made by the petitioner is in January, 2004 and thereafter, he committed default. The recovery proceedings were initiated by the respondents resulting in citation dated 24.5.2005. 6. In the facts and circumstances of the case the plea of the petitioner that the recovery proceedings are barred by limitation is without any force and is accordingly rejected. Moreover a bare perusal of the writ petition would show that no such ground has been taken in the writ petition and on the other hand in para 15 of the writ petition the petitioner has expressed his willingness to repay 7 the remaining amount which may be reproduced as under : “That the petitioner has already repaid the approximate amount of Rs. 200000/- and will ready to pay the remaining amount in 4 easy instalments quarterly in one year.” In these facts and circumstances of the case in our considered view, application of the decisions cited above by the petitioner appellant are of no help to him and do not advance in this case further. 7. In Bareilly Development Authority v. Vrinda Gujarati and others, AIR 2004 SC 1749 , the Apex Court held as under : “Once the respondents owe money to the appellant, it is fully in the competence of the Authority to recover the same. The parties to this action are bound by the terms of the contract.”....(Para 16) 8. 7. In Bareilly Development Authority v. Vrinda Gujarati and others, AIR 2004 SC 1749 , the Apex Court held as under : “Once the respondents owe money to the appellant, it is fully in the competence of the Authority to recover the same. The parties to this action are bound by the terms of the contract.”....(Para 16) 8. Again considering the scope of interference by High Court under Article 226 of the Constitution of India in the matter of recovery of dues by the financial institution, the Apex Court in the case of Orissa State Financial Corporation and others v. Umesh Chandra Dani, (2001) 10 SCC 522 , observed as under : “In a number of cases this Court has laid down that the powers of the High Court under Article 226 of the Constitution of India in the matter of recovery of the dues by the State Financial Corporation under the provisions of the Act are limited to considering whether there is any statutory violation on the part of the State Financial Corporation or whether the Financial Corporation has not acted fairly and reasonably. The power under Article 226 is not to be invoked just to enable the person who has received loan facilities to thwart the recovery proceedings........” (Para 4) 9. Besides, this Court in exercise of equitable extra ordinary jurisdiction under Article 226 of the Constitution of India is not bound to interfere if no equity lies in favour of the petitioner or the Court finds any interference but its part may result in miscarriage of justice to other side. The relief under Article 226 is discretionary in nature. 10. There is no equity in favour of the defaulting party which may justify interference by the Court in exercise of its equitable extra ordinary jurisdiction under Article 226 of the Constitution to assist it in not repaying its debts. The objective flowing from the equity is to promote honesty and not to frustrate the legitimate right of the financial institution which has taken steps for recovery of the amount which had advanced towards loan to the defaulting party. The person who seeks equity must do equity. 11. In our considered view, none of the aforesaid judgment helps the appellant and advances his case. The person who seeks equity must do equity. 11. In our considered view, none of the aforesaid judgment helps the appellant and advances his case. This Court, in exercise of writ jurisdiction under Article 226 of the Constitution of India which is a discretionary nature, may refuse to grant such relief as sought in this writ petition. Even if the petitioner has a good case, but if the Court finds that equity is against him or it will result in miscarriage of justice in such case the Court may decline to exercise its discretionary power in favoaur of the petitioner. 12. In the present case the petitioner has accepted that loan to the tune of Rs. 1,00,000/- was taken in 1987 and this was to be repaid by 1996 as per terms and condition of the loan amount. Nothing has been brought on record to show that any instalment, pursuant to the time schedule fixed by the Bank, was paid or deposited and thus the Hon’ble single Judge has rightly declined to exercise discretion in favoaur of the petitioner-appellant. In the case of Sharda Devi (Supra), the Full Bench of this Court has observed that power vested to this Court under Article 226 of the Constitution of India is discretionary nature. This discretion of the Court can be declined in case it is found that the equity is against the petitioner and it would also result in miscarriage of justice. 13. In the facts and circumstances of the case, we find that in the instant case the equity is against the appellant and if any interference is made in the order under appeal, that would result in miscarriage of justice. We do not find any fault in the order of learned Single Judge. 14. The appeal is without merit and it is accordingly dismissed. Appeal Dismissed. ———