Court No. 21
Civil Misc. Writ Petition No. 40871 of 2010
Onkar Nath
Vs.
State of U.P. and others
Hon'ble V.K.Shukla,J.
Present writ petition in question has been field by petitioner
questioning the validity of the recovery proceedings undertaken against
petitioner in pursuant of citation/notice dated 08.03.2010 and further for
issuing writ in the nature of mandamus directing respondent no. 3 to
proceed with auction and sale of the tractor in question in accordance with
law by public auction and adjust the sale price towards outstanding amount
due against petitioner.
Earlier questioning the validity of the recovery proceeding petitioner
has approached this Court and this Court on 02.04.2007 passed following
order which is being quoted below:
” Heard learned counsel appearing on behalf of the petitioner and
Smt. Archana Singh, counsel for the Bank.
Petitioner had taken loan for agricultural purposes. According to
the petitioner he could not pay the instalments due to unavoidable
circumstances and the loan is being recovered by coercive means. It is
submitted that if reasonable time is allowed to pay the amount sought to
be recovered in instalment, petitioner may be able to pay the same and
irreparable injury on account of arrest and auction of property may be
avoided.
To the aforesaid learned counsel appearing for contesting
respondent submits that although in some of the cases it has been said
that against the recovery proceedings unless some illegality is pointed out
the Court may not interfere but at the same time submission is that
intention of the respondent Bank has been never to cause any irreparable
injury to the loanee rather the loan amount was advanced with the
purpose to improve his future prospects and thus it for justifiable reason
the amount in terms of the agreement has not been paid and now
petitioner has bona fide intention to pay the amount with a reasonable
time then respondents may not have any objection.
Accordingly this petition is disposed of finally with the following
directions:
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(i) Petitioner may deposit the entire amount sought to be
recovered directly in contesting respondent no. 3 Bank in six equal
instalments. In calculating the arrears the amount (if any) already paid
will be adjusted.
(ii) The first instalment may be deposited by 2nd May, 2007, second by 2nd
August 2007, third by 2nd November, 2007, fourth by 2nd February, 2008,
fifth 2nd May, 2008 and the last/sixth instalment by 2nd August, 2008. In
case instalments are deposited in the contesting respondent within the
aforesaid time then recovery charges will not be recovered from the
petitioner.
(iii) Petitioner may file an application for supply of statement of
account alongwith the duly stamped self addressed envelope. In case any
such application is filed, the contesting respondent will give the same to
the petitioner within fifteen days.
(iv) Property (agricultural land/tractor) belonging to the petitioner, if
attached will be released after deposit of first instalment by concerned
Tehsil authority unless it has already been auctioned.
(v) If the petitioner deposits the instalment as fixed by this Court in
time the recovery shall be kept in abeyance but if the petitioner defaults
in paying any of the instalment this order shall stand vacated.
(vi) This order will not be applicable if petitioner has filed any earlier writ
petition challenging the recovery of this loan.”
This is accepted position that pursuant to order passed by this Court
not even a single instalment has been deposited and once this is factual
scenario that not even a single instalment has been deposited then recovery
being undertaken qua the same there is no short coming whatsoever.
Petitioner has thereafter contended that authority be directed to sell
the tractor and amount in question be adjusted and thereafter whatever
amount is due with the same information be furnished so that petitioner
may make payment good. Once tractor in question has been attached then
exercise shall be undertaken in the direction of auction for the same, unless
there is some legal impediment, in such a situation and in this background
Tehsildar Bara, District Allahabad is directed to see and ensure, in case
there is no legal impediment to auction the tractor in question though public
auction and thereafter whatever amount is realised from the sale
proceeding of the Tractor same be adjusted towards debt dues of the
petitioner and qua balance amount information be send to petitioner
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accordingly and it would be open to respondent to take proceeding for
realisation of balance amount also as the procedure prescribed.
With the above observation present writ petition is dismissed.
Dated 16th July, 2010
Dhruv