Govind Singh Rautela v. U. P. Financial Corporation
2014-02-24
SUDHANSHU DHULIA
body2014
DigiLaw.ai
ORDER The petitioner before this Court has challenged the recovery proceedings initiated against him by respondent No.1 U.P. Financial Corporation (hereinafter referred to as 'Corporation'). The main contention of the petitioner is that the recovery is barred by time. 2. The petitioner not only denies that he has any dues against the Corporation, but also challenges the recovery proceedings on the grounds that the same is time barred. Admittedly the petitioner had taken a loan from the Corporation in the year 1981. The total loan sanctioned a term loan of Rs. 24,000/- for establishing of a Confectionery Unit, however, the total loan which was given to him was only Rs. 20,000/-. 3. According to the petitioner he regularly paid installments to the Corporation. He received a letter from the Corporation on 02.08.2009 in which the Corporation demanded a sum of Rs. 13,850/- as principal amount and Rs. 51,151/- as interest thereon i.e. total sum of Rs. 71,001/- as outstanding against the petitioner. 4. This said amount was not paid by the petitioner and subsequently, a recovery proceedings have been initiated against the petitioner under the U.P. Public Money (Recovery of Dues) Act, 1972 (in short 'Public Money Act'). This recovery is being recovered as an arrear of land revenue. 5. The respondents admit that when all efforts to recover the money from the petitioner fails, they finally initiated recovery proceedings under the Public Money Act vide citation dated 18.11.2012. However, the respondents contend that the recovery is not time barred, as they have been writing letters to the petitioner to repay the said loan i.e. letters dated 11.08.1982, 10.12.1982, 05.01.1983, 06.01.1983, 10.06.1983, 17.09.1983, 27.11.1983, 14.12.1983, 09.02.1984, 21.02.1984, 09.03.1984, 15.06.1984, 01.08.1984, 07.09.1984, 27.08.1984, 17.11.1984, 16.10.1985 and 18.02.1986. Thereafter there is a gap of more than 17 years and the next letter was issued by them admittedly on 11.11.2003. There are other two letters dated 24.02.2004 and 05.10.2005 as well. Admittedly recovery of certain dues provided under Section 3 of the Public Money Act, which reads as under:- ' 3.
Thereafter there is a gap of more than 17 years and the next letter was issued by them admittedly on 11.11.2003. There are other two letters dated 24.02.2004 and 05.10.2005 as well. Admittedly recovery of certain dues provided under Section 3 of the Public Money Act, which reads as under:- ' 3. Recovery of certain dues as arrears of land revenue ' (1) Where any person is party' (a) to any agreement relating to a loan, advance or grant given to him or relating to credit in respect of, or relating to hire-purchase of goods, sold to him by the State Government or the Corporation, by way of financial assistance; or (b) to any agreement relating to a loan, advance or grant given to him or relating to credit in respect of, or relating to hire-purchase of goods sold to him, by a banking company or a Government Company, as the case may, be, under a State sponsored scheme; or (c) to any agreement relating to a guarantee given by the State Government or the Corporation in respect of a loan raised by an industrial concern; or (d) to any agreement providing that any money payable thereunder to the State Government or the Corporation shall be recoverable as arrears of land revenue; and such person- (i) makes any default in repayment of the loan or advance or any instalment thereof; or (ii) having become liable under the conditions of the grant to refund the grant or any portion thereof, makes any default in the refund of such grant or portion or any instalment thereof; or (iii) otherwise fails to comply with the terms of the agreement; then, in the case of the State Government, such officer as may be authorized in that behalf by the State Government by notification in the Official Gazette, and in the case of the Corporation or a Government Company the Managing Director or where there is no Managing Director then the Chairman of the Corporation, by whatever name called or such officer of the Corporation or Government Company as may be authorized in that behalf by the Managing Director or the Chairman thereof, and in the case of a banking company, the local agent, thereof, by whatever name called, may send a certificate to the Collector, mentioning the sum due from such person and requesting that such sum together with costs of the proceedings be recovered as if it were an arrear of land revenue.
(2) The Collector on receiving the certificates shall proceed to recover the amount stated therein as an arrear of land revenue. (3) No suit for the recovery of any sum due as aforesaid shall lie in the civil court against any person referred to in sub-section (1) (4) In the case of any agreement referred to in sub-section (1) between any person referred to in that sub-section and the State Government or the Corporation, no arbitration proceedings shall lie at the instance of either party either for recovery of any sum claimed to be due under the said sub-section or for disputing the correctness of such claim: Provided that whenever proceedings are taken against any person for the recovery of any such sum he may pay the amount claimed under protest to the officer taking such proceedings, and upon such payment the proceedings shall be stayed and the person against whom such proceedings were taken may make a reference under or otherwise enforce an arbitration agreement in respect of the amount to be paid, and the provisions of Section 183 of the Uttar Pradesh Zamidari Abolition and Land Reforms Act, 1901, or Section 287-A of the Uttar Pradesh Zamidari Abolition and Land Reforms Act, 1950, as the case may be, shall mutatis mutandis apply in relation to such reference or enforcement as they apply in relation to any suit in the civil court. (5) Save as otherwise expressly provided in the proviso to sub-section (4) of this section or in Section 183 of the U.P. Land Revenue Act, 1901 or Section 287-A of the Uttar Pradesh Zamidari Abolition and Land Reforms Act, 1950 every certificate sent to the Collector under sub-section (1) shall be final and shall not be called in question in any original suit, application (including any application under the Arbitration Act, 1940) or in any reference to arbitration and no injunction shall be granted by any court or other authority in respect of action taken or intended to be taken in pursuance of any power conferred by or under this Act.' 6.
The petitioner relies upon a decision of Allahabad High Court in Narendra Kumar v. Collector, Bulandshahar, reported in 2004 All LJ 2235 wherein it has been held that in a case where recovery proceeding loan was given by the Finance Corporation and subsequently recovery proceedings initiated in the year 1979, thereafter stopped in the year 1982, but was again being initiated in the year 2000, was held to be wrong and barred by limitation. The said judgment also holds that though the Public Money Recovery Act does not prescribe a period, the period should be reasonable period. In the same judgment the Allahabad High Court further states as under:- 'The reasonable period would be the period during which the suit could have been filed. Since the respondents slept over the matter for eighteen years, the recovery of loan in 2000 was barred by time. No effort has been made by the respondents to establish that the cause of action for recovery survived after eighteen years. Law recognises various events, which may extend the period of limitation or revive it. For instance, part payment during statutory period or acknowledgment to pay after running out of period of limitation. The allegation in paragraph 16 of the writ petition that there was no correspondence between the petitioners and respondents after 1981 in respect of loan or arrears, nor the petitioners ever acknowledged any debt or loan after 1981, which could entitle the respondents to start recovery again, was vaguely denied. In reply to paragraphs 12 and 14 of the writ petition the respondents have stated that the officers of the Corporation had been visiting and demanding arrears from petitioners. No material has been filed in support of it. The reference to Annexure-3 filed by the petitioners is irrelevant. This letter is the letter sent by the Corporation in the year 2000 to the petitioners to avail the benefit of one time settlement scheme. There is nothing to prove that the amount was demanded after 1981 and before 2000. It is of no help for the purpose of limitation. The counter affidavit has been filed by the Deputy Senior Manager Law of the Corporation. He has stated that, 'officers of the Corporation during all the period kept on writing letters and made personal visits to the petitioners for repayment of loan'. It is obviously an attempt to bring the recovery in period of limitation.
The counter affidavit has been filed by the Deputy Senior Manager Law of the Corporation. He has stated that, 'officers of the Corporation during all the period kept on writing letters and made personal visits to the petitioners for repayment of loan'. It is obviously an attempt to bring the recovery in period of limitation. But the allegation is not helpful to the respondents. The affidavit does not disclose the name of the officer or the date of visit. Nor any letter has been filed in support of the allegation that various letters were written demanding arrears. The affidavit has been sworn on personal knowledge without disclosing the source of information. It cannot be relied. It is insufficient to prove that limitation to start recovery survived after eighteen years.' 7. The above view of the Allahabad High Court is further strengthened by a judgment of Hon'ble Apex Court in Maharashtra State Financial Corporation v. Ashok K. Agarwal and others, reported in (2006) 9 SCC 617 : ( AIR 2006 SC 1584 , para 6) wherein it has held in paragraph 7 as under:- 'The amendment under Section 31 of the State Financial Corporation Act which authorises the State Financial Corporations to take action under Section 31 of the Act for enforcing the liability against the sureties, was brought about in the year 1985 by introduction of sub-section (aa) in Section 31 (1) of the Act. Even after this amendment the appellant did not wake up to take any step against the sureties in the present case. Notice was issued to the sureties only on 7th December, 1991 and the application for enforcement of liability against them was filed on 2nd January, 1992. The application, therefore, was clearly barred by time and the decisions of the courts below cannot be faulted. The courts below rightly dismissed the application on the ground that it was barred by limitation. The appeal has no merit. It is dismissed with no order as to costs.' 8. Hon'ble Apex Court in Narendra Kumar, (2004 All LJ 2235) (supra) further relied upon State of Kerala v. V.R. Kalliyanikutty, reported in AIR 1999 SC 1305 and has held as under:- 'In law he would be entitled to submit in the suit that the claim against which the recovery has been made is time-barred. Hence no amount should have been recovered from him.
Hence no amount should have been recovered from him. When the right to file a suit under Section 70(3) is expressly preserved, there is a necessary implication that the shield of limitation available to a debtor in a suit is also preserved. He cannot, therefore, be deprived of this right simply by making a recovery under the said Act. Unless there is anything in the Act which expressly brings about such a result. Provisions of the said Act, however, indicate to the contrary. Moreover, such a wide interpretation of 'amount due' which destroys an important defence available to a debtor in a suit against him by the creditor, may attract Article 14 against the Act. It would be ironic if an Act for speedy recovery is held as enabling a creditor who has delayed recovery beyond the period of limitation to recover such delayed claims.' 9. Considering the judgments mentioned in the body of the judgment as well as after hearing learned counsel for the parties, this Court is of the view that the proceedings initiated against the petitioner are highly belated and cannot be initiated after a gap of more than seventeen years. 10. Accordingly, the writ petition succeeds. The impugned recovery citation dated 18.11.2012 (Annexure No. 1 to the writ petition) passed by respondent No. 4 is hereby quashed. No order as to costs. Petition allowed.