Research › Search › Judgment

Jharkhand High Court · body

2010 DIGILAW 219 (JHR)

Binay Kumar Modi v. State of Jharkhand

2010-02-09

M.Y.EQBAL, R.R.PRASAD

body2010
JUDGMENT M.Y. Eqbal, J. 1. The instant appeal is directed against the judgment and order dated 11.12.2009 passed in W.P.(C) No. 5586/2009 whereby the learned Single Judge disposed of the writ application with a direction to the petitioner/appellant to deposit 40% certificate dues with the respondent-Bank and on such deposit Revisional Court shall stay the warrant issued by the certificate officer. 2. The facts of the case lie in a narrow compass. The appellant was availing financial assistance from the respondent - State Bank of India. On default a certificate proceeding was initiated against the appellant under the Bihar and Orissa Public Demand Recovery Act. On being noticed appellant appeared before the certificate officer and filed objection under Section 10 of the said Act. The Certificate Officer, Dumka, who after considering the amendment petition filed by the respondent-Bank and also objection filed by the petitioner held that certificate dues claimed by the Bank against the appellant was correct, hence, Certificate Officer proceeded under Section 11 of the said Act. Against the aforesaid order of the Certificate Officer dated 25.7.2009 the appelant filed revision before the Collector, Dumka which was registered as certificate revision No. 1/2009-10. The appellant said to have filed application in the said revision for stay of bailable warrant issued by the Certificate Officer but instead of pursuing the revision the appellant filed the aforementioned writ petition on the ground that the stay application filed before the Collector, Dumka in the aforementioned revision could not be heard as the Collector was not holding Court. 3. The aforementioned writ petition has been dismissed by the learned Single Judge by passing the impugned judgment and order whereby he has directed the appellant to deposit 40% of the certificate dues and in the event of deposit the Collector, Dumka shall stay the wan ant issued by the Certificate Officer. Aggrieved by the said order passed by the learned Single Judge, the instant appeal has been filed by the appellant. 4. Mr Rajiv Sinha, learned Counsel appearing for the appellant assailed the impugned judgment and award mainly on the ground that direction to deposit 40% of the certificate dues in order to entertain the revision and for stay of the warrant is absolutely unwarranted and against the principle of law. 4. Mr Rajiv Sinha, learned Counsel appearing for the appellant assailed the impugned judgment and award mainly on the ground that direction to deposit 40% of the certificate dues in order to entertain the revision and for stay of the warrant is absolutely unwarranted and against the principle of law. Learned Counsel submitted that the appellant moved in revision against the order by which petition for amendment of the certificate filed by the respondent-Bank was allowed and not against the order by which the liability of the appellant was determined by the Certificate Officer under Section 10 of the Act. Hence, according to the learned Counsel, there was no need to comply the statutory requirements of deposit of 40% of Section 62 of the Act. 5. Section 62 of the Bihar and Orissa Public Demand Recovery Act empowers the Collector to revise any order passed by the Certificate Officer exercising power under the said Act. For better appreciation, Section 62 of the Act reads as under: 62. Revision - The Collector may revise any order passed by a certificate officer, Assistant Collector or Deputy Collector under this Act; the Commissioner may revise any order passed by a Collector under this Act; and the Board of Revenue may revise any order passed by a Commissioner under this Act; [Provided that no revision petition shall be entertained by any authority unless the certificate debtor deposits deposits forty per cent of the certificate dues at the time of its filing: Provided further that no certificate debtor shall be called upon to do so if he has already deposited this amount at any earlier stage.] 6. From bare perusal of the aforesaid provision, it is clear that revision is maintainable before the Collector against any order passed by the certificate officer and is not restricted to any final order. The proviso to the aforesaid section made it mandatory fir the certificate debtor to deposit 40% of the certificate dues at the time of filing of revision against any order passed by the Certificate Officer. 7. The proviso to the aforesaid section made it mandatory fir the certificate debtor to deposit 40% of the certificate dues at the time of filing of revision against any order passed by the Certificate Officer. 7. In the instant case, from perusal of the order dated 25.7.2009 passed by Certificate Officer against which appellant preferred revision before the Collector, it transpires that certificate Officer not only allowed the application filed by the respondent-Bank for amending the certificate amount but also after considering the objection filed by the appellant held that he claim of the respondent-Bank is correct. Prima facie, therefore, J am of the view that the Certificate Officer not only disposed of the amendment petition but also after hearing the parties disposed of the objection filed by the appellant. 8. Even assuming that by the order dated 25.7.2009 the Certificate Officer has not considered and decided the objection under Section 10 of the Act, as argued by the Counsel for the appellant, for maintaining the revision under Section 62 of the Act, the statutory requirements of deposit of 40% of the certificate dues has to be complied with by the certificate debtor Earlier the view taken by the Single Bench of the Patna High Court in the case of Birendra Kumar Mehta v. The State of Bihar and Ors. (1999)2 PLJR 877 that unless the Certificate Officer decide objection under Section 10 of the Act, certificate debtor is not required to deposit 40% has be overruled by a Division Bench in the Case of Hiralal Prasad v. The State of Bihar and Ors. (2004)3 PLJR 823 . Overruling the Single Bench decision, the Division Bench observed as under: 4. Requirement of law to deposit 40% of the certificate dues is a condition precedent for entertainment of appeal under Section 60 of the Act with regard to order passed under Section 10 of the Act and with regard to all orders so far revision under Section 62 of the Act is concerned. It provides that the appeal or revision shall not be entertained unless 40% of the certificate dues is deposited at the time of filing of the appeal or revision. The provision does not make any distinction as to whether the subject matter of appeal or revision has been disposed of on merit or on technical ground. It provides that the appeal or revision shall not be entertained unless 40% of the certificate dues is deposited at the time of filing of the appeal or revision. The provision does not make any distinction as to whether the subject matter of appeal or revision has been disposed of on merit or on technical ground. Any such distinction will be in violation of the requirements of the provisions as contained under Sections 60 and 62 of the Act. Once the matter is placed before the authority to decide tinder the provisions of the Act, he may decide the matter rightly, he may decide the matter wrongly, he may decide the matter on merit or he may decide the matter on technical ground. That will not make any distinction so far as filing of appeal/revision is concerned and requirement of law as provided under Sections 60 and 62 of the Act to deposit 40% of the certificate dues has to be complied with. 9. In the light of the statutory provision contained in Section 62 of the Act in our view, learned Single Judge has rightly directed the appellant to deposit 40% of the certificate dues with the respondent-Bank and also directed the Collector to stay warrant issued by the Certificate Officer and decide the revision on merit. We do not find any reason to interfere with the impugned judgment passed by the learned Single Judge. 10. For the reasons aforesaid, there is no meat in this appeal, which is, accordingly, dismissed. R.R. Prasad, J. I agree.