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2013 DIGILAW 218 (ALL)

Bishambhar Singh v. State of U. P. Through District Magistrate, Bijnor and Others

2013-01-17

B.AMIT STHALEKAR

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B. Amit Sthalekar, J.— This writ petition has been filed by the petitioner seeking a direction in the nature of mandamus to release the attached property of the petitioner which according to him has been auctioned for Re. 1/- in favour of the State after cancelling the auction proceedings. 2. The petitioner took a Tractor Loan of Rs. 57,000/- and Rs. 9000/- for other agricultural activities, a total sum of Rs. 66,000/- from the Bank-respondent No. 5 in the year 1986-87. From the admitted facts in the writ petition he deposited a sum of Rs. 10,000/- in the year 1992-93 and thereafter a sum of Rs. 30,000/- on 9.1.1993. A recovery certificate in Form 'F' was issued by the Bank under Rule 27 of the Banking Rules on 8.9.1993 for recovery of outstanding demand of Rs. 1,20,287/-. A notice was issued to the petitioner by the Tehsildar filed as Annexure-3 to the writ petition, calling upon the petitioner to deposit a sum of Rs. 97,939 + interest and recovery charges and fixed 27.3.1998 for the sale of attached property. On 27.3.1998, the petitioner deposited a sum of Rs. 16,500/- and thereafter requested that he is ready to deposit a further sum of Rs. 20,000/-but the District Magistrate directed him to deposit Rs. 25,000/-. There is nothing in the writ petition to show that this amount of Rs. 25,000/- was deposited by the petitioner. Thereafter the matter was referred by the District Magistrate to S.D.M.-respondent No. 2 and thereafter the property and other holdings of the petitioner were attached in pursuance of the recovery proceedings initiated earlier. The property of the petitioner is also stated to have been auctioned by the respondent No. 4 Tehsildar on 28.4.1998. Aggrieved the petitioner filed writ petitoin No. 30069 of 1998, which was disposed of by this Court by the order dated 17.9.1998. After this the petitioner is stated to have been provided with the statement of account by the respondent -bank which he has filed as Annexure-7 to the writ petition, wherein an amount of Rs. 27,415/- is stated to be outstanding against the petitioner. According to the petitioner this amount has also been deposited by him on 19.8.1999 but thereafter the statement of account which was issued by the respondent-bank mentioned that the interest from 8.9.1993 to 31.7.1999 of Rs. 1,59,575/- was further due against the petitioner. 3. 27,415/- is stated to be outstanding against the petitioner. According to the petitioner this amount has also been deposited by him on 19.8.1999 but thereafter the statement of account which was issued by the respondent-bank mentioned that the interest from 8.9.1993 to 31.7.1999 of Rs. 1,59,575/- was further due against the petitioner. 3. I have heard Shri M.A. Khan, learned Counsel for the petitioner, Shri Amrish Sahai, learned Counsel appearing for the respondent-bank and the learned Standing Counsel for the other respondents. 4. According to the learned Counsel for the petitioner, the petitioner initially took a loan of Rs. 66,000/- of which he has deposited certain amounts, as already noted above and when he approached this Court by means of writ petition No. 30069 of 1998 he was directed to deposit the remaining amount in tri-monthly instalments by this Court's order dated 17.9.1998. According to him the statement of account provided by the bank filed as Annexure-7 to the writ petition shows the outstanding amount as Rs. 27,415/- which he has deposited on 19.8.1999. However the statement of account filed as Annexure-7 to the writ petition, does not show the interest due on the loan amount. Thereafter another statement of account was issued to the petitioner which has been filed by the respondent No. 5 through a supplementary-affidavit dated 20.6.2011 and Annexure-SC A-3 to the said affidavit is the statement of account showing the calculation of interest from 8.9.1993 to 31.7.1999 as Rs. 1,59,575/-. This amount has not been paid by the petitioner. This statement of account showing an outstanding amount of Rs. 1,59,575/- has also been filed as Annexure-1 to the counter-affidavit of respondent No. 5. 5. The admitted position emerging from the arguments of learned Counsel at the bar is that the amount of Rs. 1,59,575/- has also not been deposited at the time of filing of this writ petition. Thereafter the respondent No. 5 has filed another supplementary counter-affidavit dated 11.7.2012 wherein a statement of account has been filed wherein total outstanding dues against the petitioner from 15.1.2000 upto 30.6.2012 has been shown as Rs. 10,24,049/-. At no stage of the pendency of the writ petition has the petitioner opted for payment of any outstanding amount or for negotiating or arriving at a settlement with the bank for payment of any lesser amount. 6. 10,24,049/-. At no stage of the pendency of the writ petition has the petitioner opted for payment of any outstanding amount or for negotiating or arriving at a settlement with the bank for payment of any lesser amount. 6. Interest is only an accretion of wealth on a principal amount and even if the petitioner claimed that he has paid the amount due against him as upto 1993 or upto 1999, the statement of account does not show the interest during that period and it is only in the SCA-3 of the supplementary counter-affidavit dated 20.6.2011 that the amount of interest has been shown as Rs. 1,59,575/- for the period from 8.9.1993 to 31.7.1999. This amount has also not been deposited by the petitioner and interest has continued to pile up during the pendency of the writ petition. 7. The Supreme Court in the case State Bank of India v. Yasangi Venkateswara Rao, JT 1999 (1) SC 145 has held in paragraph 8 as under : "We also find it difficult to agree with the observation of the High Court that normally when a security is offered in the case of mortgage of property, charging of compound interest would be regarded as excessive. Entering into a mortgage is a matter of contract between the parties. If the parties agree that in respect of the amount advanced against a mortgage compound interest will be paid, we fail to understand as to how the Court can possibly interfere and reduce the amount of interest agreed to be paid on the loan so taken. The mortgaging of a property is with a view to secure the loan and has no relation whatsoever with the quantum of interest to be charged." 8. A Division Bench of this Court while deciding the Special Appeal No. 96 of 2000, State Bank of India v. Ram Bahal and others has, following the judgment of the Supreme Court in the case of Yasangi Venkateshivara Rao (supra), held in paragraphs 5 and 6 that interest is a matter of contract between the parties and Courts cannot interfere in the same. Writ petitioners are bound to pay interest in accordance with the agreement. Paragraphs 5 and 6 of the said judgment read as under : "5. Writ petitioners are bound to pay interest in accordance with the agreement. Paragraphs 5 and 6 of the said judgment read as under : "5. Having heard learned Counsel for the parties, we are of the opinion, that direction given by the learned Single Judge that the bank will charge simple interest from the petitioners cannot be legally sustained in view of section 21-A of the Banking Companies Regulation Act. The writ petitioners are bound to pay interest in accordance with the agreement. 6. The Special Appeal is partly allowed and the direction given by the learned Single Judge to the effect that simple interest will be charge from the writ petitioner is set aside. The appellant-State Bank of India will be entitled to charge interest in accordance with the agreement which was executed by the parties at the time when the loan was given to the writ petitioners." 9. The Supreme Court in the case Indian Bank v. Blue Joggers Estates Limited and others, (2010) 8 SCC 129 = 2010 (82) ALR 786 (SC) has held in paragraphs 22, 23, 24 and 25 as under : "22. The argument of the learned Counsel for the respondents that the rate of interest is unconscionable, expropriator and contrary to law also merits rejection because at no stage the respondents had questioned the terms on which loan and other financial facilities were extended by the appellant. That apart, after having enjoyed those facilities for more than one decade, the respondents cannot turn around and raise an argument based on the judgments of this Court in Central Inland Water Transport Corpn. v. Brojo Nath Ganguly and Delhi Transport Corpn. v. D.T.C. Mazdoor Congress. 23. It must be remembered that the respondents were not in a position of disadvantage vis-a-vis the appellant. If they so wanter, the respondents could have declined to avail loan and other financial facilities made available by the appellant. However, the fact of the matter is that they had signed the agreement with open eyes and agreed to abide by the terms on which the loan, etc. was offered by the appellant. Therefore, the doctrine of unconscionable contract cannot be invoked for frustrating the action initiated by the appellant for recovery of its dues. 24. The respondents' accusation that the appellant had not treated them fairly sans credibility. was offered by the appellant. Therefore, the doctrine of unconscionable contract cannot be invoked for frustrating the action initiated by the appellant for recovery of its dues. 24. The respondents' accusation that the appellant had not treated them fairly sans credibility. It is they who had failed to repay the outstanding dues. Not only this, after signing two compromise deeds, they failed to fulfil their commitment and delayed the payment of Rs. 63.5 lakhs by almost three years. We have not felt impressed by the submission of the learned Senior Counsel appearing for the respondents that the default amount was too small to warrant initiation of proceedings under section 13 of the Act. 24. The Court cannot lose sight of the fact that the bank is a trustee of public funds. It cannot compromise the public interest for benefiting private individuals. Those who take loan and avail financial facilities from the bank are duty-bound to repay the amount strictly in accordance with the terms of the contract. Any lapse in such matters has to be viewed seriously and the bank is not only entitled but duty-bound to recover the amount by adopting all legally permissible methods. Parliament enacted the Act because it was found that legal mechanism available till then was wholly insufficient for recovery of the outstanding dues of banks and financial institutions. Reference in this connection deserves to be made to the judgments of this Court in Delhi Transport Corpn. v. D.T.C. Mazdoor Congress, Central Bank of India v. State of Kerala and United Bank of India v. Satyawati Tondon. " 10. In view of the facts of the present case and weight of the judicial pronouncements of the Supreme Court as well as of this Court, the petition lacks merit and is accordingly dismissed. 11. The petitioner may, if so advised, seek settlement of his dues with the respondent No. 5-Bank, in accordance with law. Petition Dismissed. _____________