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2007 DIGILAW 2914 (ALL)

BALDEV SINGH v. STATE OF U P

2007-12-04

SABHAJEET YADAV

body2007
SABHAJEET YADAV, J. ( 1 ) HEARD learned Counsel for the petitioner and the learned Standing Counsel on behalf of the State Government and one Sri dewance, Advocate holding brief of Sri Sudeep Seth for the Bank. ( 2 ) BY this petition, the petitioner has challenged the sale proclamation dated 27. 9. 2007 issued by respondent No. 2 for recovery of Rs. l,30,280/-as contained in Annexure-1 to the writ petition. A further relief in the nature of mandamus is sought for directing the opposite parties to drop the auction proceedings and permit the petitioner to deposit the real and actual balance amount in easy instalments. ( 3 ) THE relief sought in the writ petition rests on the fact that recovery proceeding has been initiated against deceased father of the petitioner who died on 3. 12. 2005. In pursuance of the said recovery proceedings 9. 5 acres land of the petitioner was put to auction in the year 2006 for a sum of Rs. 2,28,000/-which has been cancelled by the Commissioner but the aforesaid land of the petitioner has been again put to auction on 10. 10. 2003 in pursuance of sale proclamation dated 29. 9. 2007. The land included in the sale proclamation dated 29. 9. 2007 has been put for auction to recover the amount of Rs. 1,30,286/-plus interest thereon. ( 4 ) THE learned Standing Counsel stated that the two counter-affidavits have already been filed by the Tehsildar and Sub-Divisional Officer of Tehsil sandila, District Hardoi but the same are not on record. Therefore, on oral direction of this Court, the office has made it available on record. ( 5 ) IN Para 3 of the short counter-affidavit filed by the Branch Manager, state Bank of India, Sandila, Hardoi it has been stated that on 30. 3. 1981 a loan of Rs. 87,000/- was sanctioned by the Bank jointly in favour of father of the petitioner, namely Atar Singh son of Anokh Singh along with one Sri Baldeo singh son of Kartar Singh. In para 4 of the said counter-affidavit it is stated that the petitioner did not deposit the instalment in time and committed default in re-payment of instalments. The petitioner had deposited a total sum of rs. 18,761/- towards instalment in pursuance of the loan. The first deposit of rs. 5000/- was made on 25. 10. 1982, the second deposit of Rs. The petitioner had deposited a total sum of rs. 18,761/- towards instalment in pursuance of the loan. The first deposit of rs. 5000/- was made on 25. 10. 1982, the second deposit of Rs. 5000/- was made on 2. 6. 1983 and 3rd deposit of Rs. 4461/- was made on 3. 4. 1984 and 4th deposit of rs. 4000/- was made on 24. 5. 1984. Thereafter, the father of the petitioner did not pay single penny towards instalment after 24. 5. 1984. A true copy of the detailed statement of account has been enclosed as SCA-1 of the short counter-affidavit. In para 5 of the short counter-affidavit it has been stated that on 9. 1. 1986, the Bank issued recovery certificate for recovery of loan amount along with 12. 5% interest per annum. The total outstanding amount due against the petitioner till 9. 1. 1986 was Rs. 1,30,286/- and the same was mentioned in the recovery certificate dated 9. 1. 1986. Copy of recovery certificate dated 9. 1. 1986 is on record as SCA-2 to the short counter-affidavit. In para 6 of the said counter-affidavit it is stated that the recovery certificate dated 19. 3. 2004 enclosed as Annexure 2 of the writ petition is duplicate or reminder of the recovery certificate dated 9. 1. 1986 issued by the Bank. ( 6 ) IN the counter-affidavit filed on behalf State-respondents by Aditya prakash Srivastava, posted as Tehsildar, Sandila, District Hardoi, in para 6 of which it has been stated that due to failure of the payment of instalment of the borrowed money taken in the year 1981, a recovery proceeding was initiated on 21. 1. 2006 by issuing recovery citation but due to lack of availability of borrower in the village concerned, same could not be served upon borrower personally. It has also been stated that despite knowledge of recovery proceeding against his father, the petitioner has never informed either to the Tehsil authority or even to the residents of the village regarding death of his father and the deponent, for the first time, came to know said fact only after letter dated 15. 10. 2007 disclosing the facts of the death of his father. 10. 2007 disclosing the facts of the death of his father. In para 7 of the said counter-affidavit it has been further stated that due to disappearance of borrower and non payment of instalments on their part, properties of the father of petitioner, as per extract of the revenue record, were attached by issuing attachment proclamation dated 17. 2. 2006 by the then Tehsil authorities and till then neither the concerned Collection Amin nor even local residents including the village Pradhan were aware regarding death of the father of petitioner. Moreover, the heirs including the petitioner, himself, for the reasons better known to him, kept silence regarding the fact of death of his father and in absence of knowledge, proceeding of recovery has continuously been going on. In para 8 of the counter-affidavit, it is further stated that since no one turned up with any objection regarding attachment of immovable property of the father of petitioner, and absence of any knowledge regarding his whereabouts since very long, efforts have continuously been made to recover the amount due on borrower by auction of the properties of the father of petitioner by the then Tehsil authorities by issuing sale proclamation dated 15. 5. 2006, 15. 6. 2006, 25. 10. 2006 and 30. 11. 2006. In para 9 of the counter-affidavit it is stated that on 25. 11. 2006 property of the father of petitioner was auctioned for Rs. 2,28,000/- and against which objection was filed in the name of the father of petitioner, who was already dead on that date along with his co-borrower Baldev Singh son of kartar Singh by filing revision No. 65 of 06-07 before the Commissioner, lucknow Mandal, Lucknow. Even in the present writ petition, said fact regarding death of the father of petitioner has been suppressed by the petitioner and the same has been disclosed only on 31. 10. 2007 by the petitioner by filing supplementary affidavit before this Court. In para 10 of the counter-affidavit, it is stated that on 16. 10. 2007 when the petitioner informed to the office of the deponent in writing regarding death of his father by making a request to deposit the dues but even then no amount has been deposited till now. 2007 by the petitioner by filing supplementary affidavit before this Court. In para 10 of the counter-affidavit, it is stated that on 16. 10. 2007 when the petitioner informed to the office of the deponent in writing regarding death of his father by making a request to deposit the dues but even then no amount has been deposited till now. In paras 11 and 12 of the said counter-affidavit it has been further stated that after coming to know about the death of the father of petitioner, the matter was directed to be enquired. Thereupon immediate action has been taken by the Tehsil authority including the deponent for requisite amendment in the recovery citation and the same has been returned back to the Officer in Charge of the collection, Hardoi on 1. 11. 2007. ( 7 ) ON the basis of aforesaid statement of facts made in the counter-affidavits filed by the Bank and Tehsildar of concerned Tehsil learned Counsel for the petitioner has submitted that the aforesaid recovery certificate dated 9. 1. 1986 seems to have not been sent to Tehsil authorities and it is first time recovery certificate dated 19. 3. 2004 has been sent to them, on the basis of which they have initiated recovery proceedings against the father of petitioner on 21. 1. 2006. This fact has not been disputed by the learned Standing Counsel speaking on behalf of Tehsil authorities rather from the record brought by the office of Sub-Divisional Officer/tehsildar of concerned Tehsil, it is clear that it is first time, recovery certificate dated 19. 3. 2004 has been received by the tehsil authorities and earlier recovery certificate dated 9. 1. 1986 is not available on their record, accordingly they have proceeded to recover the amount sought for by the aforesaid recovery certificate dated 19. 3. 2004 w. e. f. 21. 1. 2006. Thus it is submitted that according to the version of the Bank in the short counter-affidavit, itself the father of the petitioner had defaulted in making payment of instalment after 24. 5. 1984 and the recovery certificate dated 9. 1. 1986 issued by the Bank has never been served upon Tehsil authorities and it is first time recovery certificate dated 19. 3. 2004 has been served upon them. Thereafter, they have initiated impugned recovery proceeding. 5. 1984 and the recovery certificate dated 9. 1. 1986 issued by the Bank has never been served upon Tehsil authorities and it is first time recovery certificate dated 19. 3. 2004 has been served upon them. Thereafter, they have initiated impugned recovery proceeding. Therefore, the entire recovery proceeding is barred by time as after lapse of three years from the date when the payment was due against the father of the petitioner, no suit for recovery of money could be instituted either against the father of the petitioner or against him even by amending aforesaid recovery certificate unless there is any other statutory provision protecting the interest of the Bank. Thus no recovery certificate could be issued on 19. 3. 2004 and accordingly further recovery proceeding is vitiated under the law. While elaborating his submission learned Counsel for the petitioner has submitted that since the recovery of loan sanctioned by the Bank as arrears of land revenue is merely a mode of recovery under the Statute and it has nothing to do with the period of limitation provided for such recovery of loan, therefore, period of limitation prescribed for recovery of money/loan is only period of limitation applicable for recovery of loan amount as arrears of land revenue and once the remedy available for r ecovery of loan amount is barred by time prescribed for institution of suit, same cannot be resorted to after lapse of prescribed time even as arrears of land revenue by the respondents. ( 8 ) ANOTHER submission of learned Counsel for the petitioner is that at any rate two persons have taken loan in tune of Rs. 87,000/- and a sum of Rs. 18,461/-has admittedly been repaid to the Bank, therefore, remaining balance amount of Rs. 70,000/- could not be enhanced more than twics and amount which could be recovered from the petitioner cannot exceed the maximum limit of twice of the aforesaid amount in view of the law laid down by Honble Apex Court in mhadagonda Ramgonda Patil and others v. Shripnl Balwant Rainade and others, AIR 1988 SC 1200 , and in given facts and circumstances of the case rule of Damdupat is applicable debarring the creditor to recover any amount of interest, which is in excess of principal amount oue at that time. At the strength of the law laid down by Apex Court the learned Counsel for the petitioner has submitted that at any rate the respondent-Bank could not recover from the petitioner any amount more than Rs. 1,40,000/ -. Learned Counsel for the petitioner has stated that after deduction of instalments paid by the father of petitioner from principal amount of Rs. 87000/- the balance would hardly remain in tune of Rs. 70000/-and the petitioner will deposit to the bank same amount of interest along with equal principal amount of Rs. 70000/-; thus total Rs. 1,40,000/- in two easy instalments. In view of such statement, 1 need not to decide the question as to whether recovery proceeding in question is barred by time and law of limitation or not. ( 9 ) APART from the law laid down by Apex Court in M. R. Patils case (supra), there appears another valid ground, which debars creditor Bank from realizing the interest sought to be recovered from the petitioner and his late father at this belated stage. In case, when the petitioners father had defaulted in making repayment of the loan amount, if the recovery proceedings would have been initiated well within the time, the interest would not have been enhanced as it stands and loan amount would have been satisfied even by auction sale of his lesser property. Thus the Bank and other respondent cannot be permitted to take advantage of their own fault in delaying the recovery proceeding in question, therefore, in my opinion they should bear their loss caused on account of such delay and petitioner should not be made to suffer. ( 10 ) LEARNED Counsel appearing for the Bank could not legitimately dispute the submission of the learned Counsel for the petitioner, therefore, the submission made by the learned Counsel for the petitioner is accepted. The petitioner is permitted to deposit only a sum of Rs. 1,40,000/- in total with the Bank in satisfaction of entire amount of loan and interest thereon. A sum of Rs. 70,000/-shall be deposited by the petitioner within two months with the Bank and remaining Rs. 70,000/- shall be deposited at interval of three months from the date of first deposit. The Bank is directed to accept the same. The petitioner is exempted from recovery charges. A sum of Rs. 70,000/-shall be deposited by the petitioner within two months with the Bank and remaining Rs. 70,000/- shall be deposited at interval of three months from the date of first deposit. The Bank is directed to accept the same. The petitioner is exempted from recovery charges. In case, the petitioner deposits first instalment within two months from today, the recovery proceeding against the petitioner and sale proclamation including auction sale in pursuance of the said recovery proceeding shall be kept in abeyance. In case, the petitioner shall fail to do so it shall be open for the Bank to proceed with the recovery proceeding against the petitioner. In that event the petitioner shall also be at liberty to press his first point either by filing fresh petition or by moving review-petition at his own risk. The petition stands disposed of finally. Petition Disposed Of. .