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2017 DIGILAW 608 (UTT)

Raj Pal Singh v. District Magistrate/Collector

2017-11-15

K.M.JOSEPH, V.K.BIST

body2017
JUDGMENT K.M. Joseph, J. 1. Since common issues are raised in both these appeals, we are disposing of the same by this common judgment. We take Special Appeal No. 911 of 2017 as the leading case. The facts are substantially the same. Appellants are the writ petitioners. The writ petitions were filed seeking the following reliefs: “(a) to issue a writ, order or direction in the nature of certiorari quashing the impugned recovery citation dated 2.6.2010 issued by the respondent No. 2, Tehsildar Gadarpur, Udham Singh Nagar (Annexure No. 6) to this writ petition, (b) to issue a writ, order or direction in the nature of mandamus commanding the respondents not to initiate the recovery proceedings adopting the coercive measures against the petitioner.” 2. Briefly put, the case of the writ petitioner is as follows: The writ petitioner is a senior citizen. He is a completely illiterate person. He earns his bread and butter by his little farming. It is his case that certain persons, who were running a N.G.O., namely, Chitransh Herbal Group met the writ petitioner and proposed him for cultivation of herbal plants and they also assured the writ petitioner that they will cooperate for getting loan from the Bank i.e. the third respondent-Bank. The writ petitioner alleges that being an illiterate person, he believed on the assurance of the N.G.O. because they gave attractive and huge profitable offers. The writ petitioner also produced his guarantor before the Bank, which was required for getting loan. Later, it is stated that the writ petitioner visited the Bank and the Office of the N.G.O. and they assured the writ petitioner that the process of getting loan is going on. It is stated that the loan was sanctioned and the entire amount was given to Chitransh Herbal Group, who will give herbal plants for cultivation, so the writ petitioner was waiting for the same. There is reference to recovery citation dated 15.12.2009 against the writ petitioner and the guarantor. It is alleged to be a complete conspiracy as the writ petitioner was cheated by the N.G.O. in collusion with the third respondent-Bank. Thereafter, there is reference to representations. There was an inquiry conducted by the Naib Tehsildar, who gave his report, in which he clearly stated that the writ petitioner is innocent and he has not got a single penny as the loan amount. Thereafter, there is reference to representations. There was an inquiry conducted by the Naib Tehsildar, who gave his report, in which he clearly stated that the writ petitioner is innocent and he has not got a single penny as the loan amount. There is also reference to Annexure No. 4, which purports to be the concluding Report of the Tehsildar, Gadarpur. The recovery citation was withdrawn against the writ petitioner. The recovery citation was taken back on his order. It is, subsequently, that Annexure No. 6 recovery citation dated 2.6.2010 (which is the impugned proceeding) came to be issued. It is stated that the writ petitioner was running from pillar to post to secure the ends of justice; but after failing the writ petitioner filed an application under Section 156(3) of Cr.P.C. before the Chief Judicial Magistrate, Rudrapur for lodging the F.I.R. and the writ petitioner is still waiting for justice. Thereafter, it is stated as follows: “17. That all of a sudden with the shock and surprise of the petitioner when he got a recovery citation, the recovery citation has been issued directly without any prior notice or information for the recovery of the aforesaid loan. Prior to the issuance of recovery citation the petitioner should have been given the notice for information by the respondent authority, but it was not done, which has added to the difficulty of the petitioner. 3. As against this, the third respondent has filed a counter affidavit. Therein, the case is mat the loan was taken by the writ petitioner. It is, inter alia, stated as follows: “5. That apart from this it is vital to mention here mat the petitioner had from a competitive market available for assisting and providing herbal plants had himself chosen and introduced to the Bank the “Chitransh Herbal Group”, Dharaia, Rampur Road, Haldwani, District Nainital, Uttarakhand. This agency responsible for the supply of the saplings of the herbal plants was a voluntary act and the petitioner's own choice where the Bank had nothing to do with the same. This agency responsible for the supply of the saplings of the herbal plants was a voluntary act and the petitioner's own choice where the Bank had nothing to do with the same. Subsequent to the disbursement of the loan as the petitioner did not comply with me Banking norms for releasing further instalments of the loan and regarding the repayment of the loan and as me petitioner had become a gross defaulter, the Bank had made several requests to the petitioner orally and in writing for the repayment of the said loan and finally the Bank was compelled to issue a Recovery Certificate, this was followed by the Recovery Citation under challenge. The same has been very lawfully and appropriately issued and now the petitioner with the motive of not repaying the dues of the Bank is concocting a storey by wrongly filing the present Writ petition, which is legally not maintainable and is liable to be quashed. 11. That likewise me petitioner had submitted an affidavit duly verified by the Notary Public dated 14.11.2007 and a no Dues Certificate obtained from various Banks. Subsequent to this the petitioner had again come to the Bank premises on 17.11.2007 accompanied by his guarantors and as stated hereinbefore after being explained about the contents of documents and the petitioner understanding the same he had executed various documents for obtaining and the repaying the said loan, such as the Demand Promissory Note etc. Besides this the petitioner had also executed a Declaration Under Section 6(1) of the U.P. Agricultural Credit Act, 1973, whereby creating a charge upon his Agricultural land situated at Village Shyam Nagar, Tahsil Gadarpur, District Udham Singh Nagar at Khasra No. 101 Kha and 103 Ka, total area 4 Acres, this Declaration was also signed by the guarantors of the petitioner as witnesses. The Guarantors of the petitioner are 1. Shri Bhupendra Singh S/o. late Rajwant Singh R/o. Vill. Gram Motipur No. 1, Tahsil Gadarpur, District Udham Singh Nagar and Shri Sanjay Kumar S/o. Hari Singh, R/o. Vill Sakinia, Tahsil Gadarpur, District Udham Singh Nagar. The Guarantors of the petitioner are 1. Shri Bhupendra Singh S/o. late Rajwant Singh R/o. Vill. Gram Motipur No. 1, Tahsil Gadarpur, District Udham Singh Nagar and Shri Sanjay Kumar S/o. Hari Singh, R/o. Vill Sakinia, Tahsil Gadarpur, District Udham Singh Nagar. It is vital to mention here that the Guarantors of the petitioner are jointly and severally liable to repay the dues of the Bank and would have naturally not allowed to happen anything which was not consented by the petitioner or given a guarantee for a scheme of growing herbal plants which was in their opinion not proper or feasible for which the petitioner would have not opted voluntarily. Photocopies of the Demand Promissory Note, Affidavit dated 14.11.2007, Declaration Under Section 6(1) of U.P. Agricultural Credit Act, 1973 and the Letter of Undertaking are being submitted herein as Annexure Nos. C.A. 5, 6, 7 and 8 to this affidavit. 13. That the contents of paragraph No. 7 of the Writ Petition are misleading absolutely wrong, ill-founded and unreliable, they are not admitted. The contention of the petitioner that he came to know about the said loan amount outstanding against him on receiving the Recovery Citation is a concoction and a fabrication on the part of the petitioner. In this regard it is worth mentioning that contrary to the contentions of the petitioner in case the petitioner did not receive the herbal plants soon after 17.11.2007 when he had handed over the Bank Draft of Rs. 4,50,000/- to the Chitransh Herbal Group, the petitioner would have immediately taken appropriate steps against the Chitransh Herbal Group by lodging an F.I.R. In fact the petitioner never intended to do so as he was himself in collusion with the said Chitransh Herbal Group. This fact was itself later on disclosed to the Bank by the Guarantor of the petitioner Sanjay Kumar who had by his letter dated 9.4.2009 disclosed the diversion of funds by Raj Pal Singh. It is vital to point out here that once a Bank hands over a Bank Draft to a loanee, the rest of the proceedings regarding the obtaining of the goods etc and to execute and implement the very purpose of the loan are of the borrower and not of the Bank, where the Bank has no role to play. The very contention of the petitioner regarding his ignorance of the loan etc. The very contention of the petitioner regarding his ignorance of the loan etc. till 15.12.2009 is falsified by the fact that upon the failure of the petitioner to comply with the Bank's lending norms and making a default regarding the repayment of the dues of the Bank, promptly the petitioner and his Guarantors were made several oral and written requests to repay the dues of the Bank. Written demands were duly served upon the petitioner dated 4.1.2008, 13.5.2008, 24.11.2008 (Reg. A.D.), 27.1.2009 (Reg. A.D.) 17.2.2009 and 14.9.2009, such demands were also made to the Guarantors of the petitioner dated 13.5.2008, 24.11.2008 (Reg. A.D.), 27.1.2009 (Reg. A.D.) and 17.2.2009. As such the very contention of the petitioner is false that he came to know about the said loan advanced to him after the issue of the Recovery Citation dated 15.12.2009. Photocopy of the letter of the Guarantor dated 9.4.2009, above stated notices and the Statement of Account till 29.7.2010 are being filed herein as Annexure Nos. C.A. 11, 12 and 13 to this affidavit. 16. That as to the contents of paragraph No. 10 of the Writ petition it is submitted that the averments made about the said report of the Naib Tehsildar are wrong, distorted and are ill-founded, the Naib Tehsildar has no where supported the case of the petitioner, it is a narration of the statements given by the loanees who are interested parties to the whole affair and are defaulters regarding the repayment of the dues of the Bank, thus the said persons are in affinity with the petitioner. These persons have again collectively through the same Advocate filed a Revision against the above Citation before the Commissioner Nainital as Revenue Revision Nos. 97 of. 2009/2010, 98 of 2009/2010 and 99 of 1999/2010 titled Harbhajan Singh v. Nainital-Almora Kshetriya Gramin Bank Gadarpur and Ors., Sarif Ahmad v. Nainital-Almora Ksetriya Gramin Bank Gadarpur and Ors. and Raj Pal Singh v. Nainital-Almora Kshetriya Gramin Bank Gadarpur and Ors. respectively, dismissed in default on 22.12.2010. It is pertinent to mention here that the very Annexure No. 3 to the Writ Petition, letter dated 3.6.2010 forwarded under the R.T.I. Act supports the Bank's case, the person Anuj Chowdhary R/o. Dineshpur, Tahsil Gadarpur, Distt. and Raj Pal Singh v. Nainital-Almora Kshetriya Gramin Bank Gadarpur and Ors. respectively, dismissed in default on 22.12.2010. It is pertinent to mention here that the very Annexure No. 3 to the Writ Petition, letter dated 3.6.2010 forwarded under the R.T.I. Act supports the Bank's case, the person Anuj Chowdhary R/o. Dineshpur, Tahsil Gadarpur, Distt. Udham Singh Nagar who has written the said letter is the son of the petitioner who as stated earlier is a well educated person, once Anuj Chowdhary can in support of his father can file an Appeal under the Right to Information Act practically the petitioner cannot be deceived as stated that too involving an amount running in lakh. 18. That as to the contents of paragraph No. 12 of the Writ petition it is submitted that the petitioner is concealing and distorting the actual facts. It is made clear that as the recall of the Recovery Citation by the Tahsildar on a detail study of the whole affair was considered wrong and unwanted by the higher authorities, they had rectified the act of the Tahsildar dated 9.3.2010, as such the Recovery Citation was subsequently again enforced by the Tahsildar Gadarpur himself and is now the subject matter of the present Writ petition. There is not an iota of evidence which in any way supports the petitioners case. As such the petitioner is now legally left with no option but to repay all the dues of the respondent Bank at the earliest. 4. We, in fact, notice that there is no rejoinder affidavit filed in either of the writ petitions. We notice that the challenge is only to the recovery citation. There is no challenge to the demand notices. This is not a case where there is a challenge to the recovery citation on any ground, on which the recovery citation can be challenged on its own. As far as the case regarding the loan is concerned, in the first place, there is a detailed counter affidavit filed refuting the allegations, which in turn, has not been disputed by filing the rejoinder affidavit. Therefore, the allegations in the counter affidavit remain unrebutted. 5. In the light of this, the learned Single Judge, in our view, was correct in dismissing the writ petitions. In such circumstances, we do not think that the writ petitioner is entitled to impugn the judgment of the learned Single Judge. Therefore, the allegations in the counter affidavit remain unrebutted. 5. In the light of this, the learned Single Judge, in our view, was correct in dismissing the writ petitions. In such circumstances, we do not think that the writ petitioner is entitled to impugn the judgment of the learned Single Judge. We may only mention that the facts in the other writ petition, from which the other appeal arises, are similar. Both the appeals fail; they are dismissed without any order as to cost.