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Gauhati High Court · body

2015 DIGILAW 1321 (GAU)

Arabinda Kalita v. State of Assam

2015-10-12

MICHAEL ZOTHANKHUMA

body2015
JUDGMENT 1. Heard Mr. M.H. Choudhury, learned counsel appearing for the petitioners. Also heard Mr. S. Dutta, learned Senior Counsel, assisted by Mr. C. Sharma appearing the respondent Nos. 2, 3 and 4, Mr. M. Khatoniar, learned counsel appearing for the respondent No. 5 and Ms. K. Phukan, learned Standing Counsel, Education appearing for the respondent No. 1. 2. Md. M.H. Choudhury, learned counsel for the petitioners submits that the petitioners had availed loan from the respondent Nos. 2, 3 and 4 way back in the year, 2008 and 2009. Thereafter, being aggrieved by the letter dated 19.06.2013, written by the Senior Manager of the Assam Gramin Vikash Bank, Naokata Branch to the Inspector of Schools, Baksa District Circle to take action against the defaulting borrowers, the petitioners (government service holders), had approached this Court by way of W.P.(C) No. 5422/2013. 3. W.P.(C) No. 5422/2013 was disposed of vide order dated 12.03.2014 as follows: “As recorded in the earlier order passed in this proceeding, on 05.03.2014, the petitioners are agreeable to allow the respondent bank to make deductions from their salary bills towards liquidating the loans they had obtained from the bank. However, there is some dispute as to what should be the amount of monthly installments to be deducted from the respective salary bills of the petitioners. Mr. S. Dutta, learned counsel representing the bank, was requested to obtain instruction in this regard. Upon instruction, Mr. Dutta, learned counsel submits that, in the meantime, the bank has instituted proceedings against the petitioners under the relevant Act and the petitioners have already been served with notice. Mr. Payeng, learned counsel for the petitioners submits that the petitioners are agreeable to liquidate their loans by making monthly deductions from their salary bills @ 50% of their respective salary. In view of the above, the writ petition is disposed of granting liberty to the petitioners to approach the respondent bank with the aforesaid proposal. In the event of such approach being made, the respondent bank shall consider the same and pass appropriate order in accordance with law.” 4. The petitioners, thereafter, approached the Senior Manager of the Assam Gramin Vikash Bank, Naokata Branch with letter dated 19.03.2014 alognwith the order dated 12.03.2014, passed in W.P.(C) No. 5422/2013. 5. In the event of such approach being made, the respondent bank shall consider the same and pass appropriate order in accordance with law.” 4. The petitioners, thereafter, approached the Senior Manager of the Assam Gramin Vikash Bank, Naokata Branch with letter dated 19.03.2014 alognwith the order dated 12.03.2014, passed in W.P.(C) No. 5422/2013. 5. In pursuance to the letter dated 19.03.2014, wherein the petitioners had made a proposal to liquidate the petitioners’ loans in pursuance to the order dated 12.03.2014, the Senior Manager of the Assam Gramin Vikash Bank, Naokata Branch issued letter dated 07.06.2014 to the Inspector of Schools, Baksa District Circle, which is to the following effect: “Please find herewith one copy of above order against writ petition No. W.P.(C) No. 5422/2013. As per order being one of the respondents you are requested to deduct 50% of gross salary from the enlisted teachers every month and also from arrear salary if payable until fully liquidation of their bank loan. You may remit the collected amount to us through NEFT in A/C No. 7290051111111 under IFSC No. UTBIORRBAGB with intimation to us in the given format just filling deducted amount against each borrower and sent through our e-mail ID bmnwk@agvb.co.in.” 6. The Inspector of Schools, Baksa District Circle, thereafter, issued letter dated 15.07.2014 to the Principals of the Schools wherein the petitioners were employed, the contents of which, reproduced below: “In pursuance of the Hon’ble Gauhati High Court’s Writ petition No. W.P.(C) 5422/2013 dt. 12.03.2014, you are hereby requested to deduct the amount of 50% of Gross Salary from the enlisted teachers every month and also from the arrear salary if payable until fully liquidation of their bank loan w.e.f. the salary of July/2014 and deposit the said amount through NEFT in A/c No. 7290051111111 under IFSC No. UTBIORRBAGB to the ASSAM GRAMIN VIKASH BANK, NAOKATA BRANCH, Vill & P.O. – Goreswar, Dist – Baksa, PIN – 781366 with an intimation to the undersigned. Otherwise, the salary from the next month will be stopped.” 7. Thereafter, 50% of the petitioners’ gross monthly salary has been deducted every month for liquidation of the petitioners’ bank loans with effect from July, 2014. 8. Otherwise, the salary from the next month will be stopped.” 7. Thereafter, 50% of the petitioners’ gross monthly salary has been deducted every month for liquidation of the petitioners’ bank loans with effect from July, 2014. 8. The petitioners have again approached this Court by way of the present writ petition for setting aside the letter dated 07.06.2014, issued by the Senior Manager, Assam Gramin Vikash Bank, Naokata Branch and letter dated 15.07.2014, issued by the Inspector of Schools, Baksa District Circle. The petitioners have challenged the above two letters on the ground that the respondent bank could not pass the order deducting 50% of the gross monthly salary of the petitioners and that the bank should have deducted only 50% of the net monthly salary of the petitioners. 9. Md. M.H. Choudhury, learned counsel for the petitioners submits that the order dated 12.03.2014, passed in W.P.(C) No. 5422/2013 and the petitioners’ letter dated 19.03.2014 does make any mention regarding deduction of 50% gross monthly salary of the petitioners. Learned counsel submits that only 50% of the net monthly salary of the petitioners should be deducted by the authorities for liquidating their loans. 10. During the proceedings of the present case, the petitioner Nos. 1, 2, 6 and 7 have filed M.C. No. 1063/2015 with a prayer to direct the respondent bank to deduct only Rs. 10,000/- per month and not 50% of their gross monthly salary, due to personal and financial problems. 11. Mr. S. Dutta, learned Senior Counsel appearing for the respondent bank has submitted that the respondent bank had initiated proceedings under Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 against the petitioners and the petitioners thereafter approached this Court with their grievances. In deference to this Court’s order dated 12.03.2014, the respondent bank had agreed to the proposal of the petitioners, which was in pursuance to this Court’s order dated 12.03.2014. Accordingly, 50% of the gross monthly salary of the petitioners was deducted for liquidation of their loans. Learned Senior also submitted that the order dated 12.03.2014, passed in W.P.(C) No. 5422/2013 and the petitioners’ letter dated 19.03.2014 proposing liquidation of their loans by deduction of 50% of their monthly salaries, nowhere indicates that only the net monthly salary should be deducted. Learned Senior also submitted that the order dated 12.03.2014, passed in W.P.(C) No. 5422/2013 and the petitioners’ letter dated 19.03.2014 proposing liquidation of their loans by deduction of 50% of their monthly salaries, nowhere indicates that only the net monthly salary should be deducted. Learned Senior Counsel further submitted that the petitioners have all along being paying 50% of the gross monthly salary for about a year before filing the present writ petition. He submits that as the question of deduction of 50% payment of monthly salary has already been decided in W.P.(C) No. 5422/2013, this Court should not review the order passed in the earlier case. He has also relied upon the judgment of the Hon’ble Apex Court rendered in the case of Oriental Bank of Commerce Vs. Sundarlal Jain & Anr., reported in (2008) 2 SCC 280 to support his argument that the petitioners have not been able to show that their legal right have been infringed upon or that the respondents have failed in their duty to do something as per law. The learned Senior Counsel for the petitioners has also submitted the following facts for the information of the Court. Sl. No. Name of the Borrower Date of loan taken Loan taken (in Rs.) Balance (in Rs.) as on 07.07.2015 1. Arabinda Kalita (Petitioner No.1) 16.03.2009 3,00,000/- 3,57,999/- 2. Ataur Rahman (Petitioner No.2) 07.02.2008 4,90,000/- 5.01.590/- 3. Birendra Kr. Boro (Petitioner No.3) 13.02.2009 4,00,000/- 3,90,654/- 4. Gandha Ram Dela (Petitioner No.4) 13.02.2009 5,00,000/- 4,79,340/- 5. Prafulla Ch. Deka (Petitioner No.5) - - 4,23,044/- 6. Kumudeswar Mahanta (Petitioner No.6) - - 3,90,654/- 7. Narendra BAsumatary (Petitioner No.7) - - 4,79,340/- 8. Bhumidhar Boro (Petitioner No.8) - - 4,63,655/- 12. On perusal of the above chart, it is clear that the petitioners have not been repaying their loan diligently. However, as this Court has already given its decision in W.P.(C) No. 5422/2013, wherein the respondent bank was to consider the petitioners’ proposal and as the said proposal has been considered by the respondent bank, I am not inclined to pass any orders, which would amount to review of the order dated 12.03.2014, passed in W.P.(C) No. 5422/2013. 13. However, as this Court has already given its decision in W.P.(C) No. 5422/2013, wherein the respondent bank was to consider the petitioners’ proposal and as the said proposal has been considered by the respondent bank, I am not inclined to pass any orders, which would amount to review of the order dated 12.03.2014, passed in W.P.(C) No. 5422/2013. 13. The letter dated 07.06.2014, issued by the Senior Manager, Assam Gramin Vikash Bank and the letter dated 15.07.2014, issued by the Inspector of Schools, Baksa District Circle are consequential orders passed upon the acceptance of the proposal of the petitioners by the bank. I also find that the order dated 12.03.2014, passed in W.P.(C) No. 5422/2013 and the petitioners’ letter dated 19.03.2014 also does not mention the question of whether the 50% deduction is with regard to gross monthly salary or net monthly salary. However, the fact remains that the petitioners, prior to the institution of the present writ petition have given 50% of the gross monthly salary for around one year for liquidating their loan, which goes to show that there was a compromise with regard to payment of 50% of the gross monthly salary. 14. In the opinion of this Court, if the petitioners are aggrieved that they had agreed only to 50% of the net monthly salary, then the question of acceptance by the bank for the said proposal would have to be considered by the bank. In the event the bank does not accept the proposal for payment of 50% net monthly salary, then the bank will have the liberty to take recourse for liquidation of the bank loans as per the law applicable for the same. The alternative remedy being available in law, the respondent bank shall be at liberty to approach the competent forum for recovering the loan amount as per law, in the event no compromise is reached between the parties with regard to liquidation of the loan amount, regard being had to the question of whether the loan should be liquidated on payment of 50% of gross monthly salary or 50% of net monthly salary. 15. The writ petition is accordingly dismissed.