JUDGMENT
S.K. Homchaudhuri, J.
1. In these three writ petitions similar facts and identical -questions of law having involved the petitions are being disposed of by this common judgment.
2. C.W.J.C. No. 1857 of 1992 (R) the petitioners No. 1 Shree Jagannath Trading Co. is a firm, the sole proprietor of which is the petitioner No. 2, Shri Pawan Kumar Gupta. For recovery of the out-standing dues payable to the Respondent No. 1 (Union Bank of India), in respect of cash credit account, a proceeding under the provisions of Bihar and Orissa Public Demand Recovery Act, 1914 (hereinafter to be referred to as ‘the Act’) was initiated against the petitioners for recovery of the amount, and certificate case No. 23 (UBI) of 1991-92 has been registered in the court of Respondent No. 3, the Certificate Officer. After receipt of the notice, the petitioners filed objection under Section 9 of the Act and thereafter the Certificate Officer duly disposed of the objection after hearing the petitioners. The petitioners have thereafter approached this Court in the writ petitions.
In C.W.J.C. No. 2050 of 1992 (R), the petitioner No. 1 M/S. Gupta Bhandar is a Hindu Undivided Family Firm and petitioner No. 2 Shri Pawan Kumar Gupta is the Karta and Manager of the petitioner No. 1. A proceeding under the provision of the Act was initiated for realisation of the out-standing dues payable to Respondent-Bank in respect of cash credit account against the petitioner and certificate case No. 22 (UBI) of 1991-92 has been registered in the court of the Respondent No. 3, the Certificate officer. The petitioners after receipt of the notice filed objection under Section 9 of the Act and the Certificate Officer after hearing the petitioners duly disposed of the objection.The petitioners have, thereafter, approached this Court, in the writ petition.
In C.W.J.C. No. 1765 of 1992 (R), the petitioner No. 1, M/S. Jain Trading Company is a partnership firm registered under the Partnership Act and the petitioner Nos. 2 and 3 are the partners of the petitioner No. 1. A proceeding under the provisions of the Act for recovery of the outstanding dues payable to the Respondent Union Bank of India in respect of the cash credit facilities, extended by the Respondent-Bank, was initiated against the petitioners and Certificate Case No. 21 (UBI) of 1991-92 has been registered in the court of the Certificate Officer. In response to the notice, the petitioners filed objection and after the disposal thereof by the Certificate Officer, the petitioners have approached this Court in the writ petition.
3. In all the three writ petitions, the petitioners mainly questioned the validity of the provisions of the Bihar Act 4 of 1974, by which, the Bihar and Orissa Public Demand Recovery Act was amended and any money payable to the State Bank of India and other banks specified therein was included within the list of Public Demands set out in Schedule 1 of the Act, on the ground of lack of legislative competence of the State of Bihar. On the said question, a number of petitions were transferred to the Apex Court, and the Apex Court by judgment and order dated 11.7.1994 passed in Transfer Case No. 4 of 1989 (Harish Tara Refractories Pvt. Ltd. and others) held that the Amendment Act 4 of 1974 by which any money payable to the State Bank of India and other banks, specified therein were included within the list of Public Demand set out in Schedule I of the Act was not ultra-vires the Constitution and was within the legislative competence of the State of Bihar. The petitioners thereafter by way of supplementary affidavits challenged the proceedings of certificate cases, contending that: (i) the requisitions were not made in accordance with the provision of Section 5(2) of the Act and prescribed form, (ii) no court fee in the eye of law was paid, (iii) Certificate Officer signed the demand certificates in the prescribed form No. 1 without application of mind and not in accordance with the provision of Section 6 of the Act, and (iv) the objections filed by the petitioners were arbitrarily disposed of without any application of mind by the Respondent No. 3.
The respondent-Bank in the counter-affidavit denied the aforesaid contentions of the petitioners.
4. We heard the learned Counsel for the petitioners and the learned Counsel for the Respondent Bank.
5. Learned Counsels for the petitioners submitted that the Certificate Officer has not disposed of the objections of the petitioners by the impugned orders in accordance with law and has arbitrarily rejected the objections. The requisition made by the Respondent No. 1 was not made as per mandate of the provisions of Sub-section(2) of Section 5 of the Act and in accordance with the prescribed form and the requisitions do not contain material facts and, therefore the same are no requisition in the eye of law. In C.W.J.C. No. 1857 of 1992 (R), learned Counsel for the petitioners drawn out attention to the copy of the requisition, supplied to the petitioners (Annexure 12 to the Supplementary Affidavit) wherein on behalf of the Union Bank of India it was written “the amount is due from M/S. Jain Trading in respect of C.C. (Hyp.) verified by me on the 6th day of June, 1991”, although the requisition was sent for recovery of the alleged outstanding dues from Shree Jagannam Trading Co. and not M/S. Jain Trading. This fact discloses that the requisition was made without application of mind. Learned Counsel for the petitioners further submitted that the Certificate Officer signed the demand certificate arbitrarily without application of mind ignoring the mandates of Section 6 of the Act inasmuch as all die certificates were signed without filling up the amount and the name of the certificate debtor at the bottom of the certificates.
Placing reliance on the decisions of this Court in the case Hari Pd. Agarwalla v. State of Bihar and Ors. (1976 PLJR page- 265), in the of Nirod Baron Banerjee v. State of Bihar and in the case of Tata Engineering and Locomotive Co. Ltd. v. The District Mining Officer and Ors. (1981 PLJR 86), the learned Counsel for the petitioners submitted that the proceedings under the Act are vitiated, because of the aforesaid infirmities in making requisitions and signing the demand certificates.
6. Learned Counsel for the Respondents submitted mat the requisitions were made in the prescribed form and were duly filled in recording satisfaction and there is no infirmity in the requisitions issued by the competent officer of the Bank for recovery of outstanding dues payable to the Bank. Learned Counsel for the Respondent-Bank submitted that it is apparent that the demand certificate in form I are signed by the Respondent No. 3 stating all relevant particulars, namely, the name of the certificate debtors, the amounts payable, names of the proprietors of the firm, as required by law and that non-mentioning the name of the certificate debtors and the amounts in the lower part of the form I is of no consequence and the petitioners are not at all prejudiced by it. Learned Counsel for the Respondent-Bank further submitted that in respect of the proceeding against the certificate debtor, Jagannath Trading the petitioner in C.W.J.C. No. 1857 of 1992 (R), in the prescribed form No. 2 the name of the certificate debtors, the proprietors, the guarantors, the amount recoverable, and nature of the dues are correcdy recorded. However, at the bottom of the form, in place of Jagannatii Trading, Jain Trading was written due to mistake. The reason for the mistake can be traced to the fact that against Jain Trading, a firm of the same group, requisition was also made at the same time for recovery of outstanding dues payable to the bank and in C.W.J.C. No. 1765 of 1992 (R) the proceedings of the certificate case for recovery of the dues from Jain Trading Co. is challenged. This omission is apparendy insignificant and has caused no prejudice to the petitioners and cannot vitiate the proceeding. Learned Counsel for the respondents submitted that the learned Certificate Officer disposed of the objection by speaking order touching all the questions raised and there is no infirmity in the orders.
7. According to the learned Counsel for the Respondent-Bank the petitioners approached mis Court mainly challenging the validity of the amendment of the Act by Act 4 of 1974 by which the money payable to the State Bank of India and other banks was included in the list as public Demand in Schedule I to the Act. After the Apex Court found that Act 4 of 1974 was valid, the petitioners have raised these points just to delay recovery of the amount.
8. I have considered the submissions made on behalf of the petitioners and on behalf of the Respondents and have perused the materials on records.
9. To appreciate the rival contentions, it is appropriate to have a look into provisions of Section 5 and Section 6 of the Act, as well as the prescribed Forms I and 2 of the Schedule II to the Act.
Section 5 of the Act reads as follows:
5. Requisition for certificate in other cases:
(1) When any public demand payable to any person other than the Collector is due, such person may send to the Certificate Officer a written requisition in the prescribed form:
Provided that in the case of an order framed by a liquidator under the Co-operative Societies Act, 1912 (2 of 1912) the written requisition shall be sent by the Registrar of Co-operative Societies, Bihar and Orissa.
(2) Every such requisition shall be signed and verified in the prescribed manner, and, except in such cases as may be prescribed, shall be chargeable with a fee of the amount which would be payable under the Court-fees Act, 1870 (VII of 1870) in respect of a plaint for the recovery of a sum of money equal to that stated in the requisition as being due.
Section 6 of the Act is as follows:
6. Filling of Certificate on requisition-On receipt of any such requisition, the Certificate Officer, if he is satisfied that the demand is recoverable and that recovery is not barred by law may sign a certificate, in the prescribed form, stating that the demand is due; and shall include in the certificate the fee if any paid under Section 5, Sub-section(2); and shall cause the certificate to be filled in his office.
Form Nos. 1 and 2 are in the following manner:
Form No 1.
Certificate of Public Demands.
Filled in the office of the Certificate Officer of district.
_________________________________________________________________________________
Number Name and Name and Amount of public Further particulars of
of Address of address demand incliuding the public demand for
certificate certificate of interest, if any and which this certificate
holder certificate including the fee paid is signed.
debtor. under Section 5, Sub-
section (2), (if any) for
which this certificate is
signed, and and period for
which such amount is
due.
__________________________________________________________________________________
I hereby certify that the above mentioned sum of Rs...is due to the above named from the above named.
(If the certificate is signed on requisition sent under Section 5, add)
I further certify that the above mentioned sum of Rs...is justly recoverable, and
that its recovery by suit is not barred by law.
Dated this. day of 19. A.B.
Certificate Officer of
Form No. 2
..........
.................
The certificate Officer of the District of....
__________________________________________________________________________________
Date of certificate Address of certificate Amount of Nature of the
debtor debtor public demand public demand
which for this for which this
requisition requisition is
is made. made.
__________________________________________________________________________________
I request you to recover the above mentioned sum of Rs....which I am satisfied inquiry, is from the said...in respect of.
Verified by me on the day of....19
A.B.
(Designation).
10. In Hari Pd. Agarwala (supra) the Divisional Forest Officer in his letter to the Certificate Officer, while asking for necessary requisition for instituting Certificate case against the petitioner of that petition, for Rs. 12,275/- only intimated the assessment of the loss for the agreement amounting to Rs. 12,275/-. The Certificate Officer in his notice in Form-I at the end of the certificate stated that he was satisfied that the above mentioned sum of Rs. 12,2,75/- was payable by the petitioner of that writ petition. On these facts, question was raised whether the certificate proceeding against the petitioner was valid or not. The Division Bench of this Court held that every requisition made in respect of a public demand payable to any person other than the Collector, should be signed and verified in the manner prescribed and be sent to the Certificate Officer. It was of essence to the statutory requirement that the requisitioning officer, while sending his requisition for certificate to the Certificate Officer, must, on verification, say that he was satisfied after inquiry that the sum in respect of which the certificate was sought to be levied was due from the certificate debtor. The sheet on which a calculation of assessment of the loss for breach of the agreement had been made and signed by the Divisional Forest Officer could not be treated to be a requisition for certificate either in pursuance of Section 5 or in the prescribed manner and in Form-2. In paragraph-4 of the judgment, it was held that the satisfaction of the Certificate Officer, even treating the matter as of form only, was without any foundation inasmuch as the satisfaction of the Certificate Officer must be based initially upon the satisfaction of the requisitioning officer, who must have verified the requisition in Form-2 under Section 5 of the Act.
In Nirod Baran Banerjee (supra), the certificate under Section 4 read with Form-1 was signed by the officer and not by the Certificate Officer. The Division Bench of this Court on this Court held that the Act provided summary way for the realisation of the certificate dues. It should be emphasised that the Act was an extremely stringent one and the summary manner of recovery of certificate dues necessiated rigid compliance with the formalities prescribed by the Legislature in that respect, and, therefore, non-compliance with the mandatory provisions of the Act or the Rules or non-observance of the formalities envisaged would result in the invalidation of the action taken. The certificate issued under Section 4 read with form I of Schedule II of the Act was signed by the District Mining Officer and not by the Certificate Officer, was illegal and without jurisdiction.
In the case of Tata Locomotive and Engineering Co. Ltd. (supra), this Court held that the certificate for public demand “has to be filed in Scheduled II under the Form prescribed therein. Therefore, unless those formalities are complied with it cannot be termed as public demand within me meaning of the Recovery Act.
11. I have perused the requisitions and demand certificates impugned in all the writ petitions and on perusal thereof I find that requisitions were made in the prescribed Form-2 of Schedule II of the Act, stating all the required particulars, such as names of the certificate debtors, address of the certificate debtors, amount payable, nature of public demand for which requisition was made, and the requisitions were made by the competent officer of the bank recording his satisfaction. The demand certificates were signed by the Certificate Officer in prescribed form and in the certificates, name address of me certificate debtors, the amount of public demand including interest, the fee paid under Section 5, Sub-section(2) (if any) for which certificates were signed and period for which such demand was due are stated. But at the bottom of the Form the amount and the name of the certificate debtors are not re-stated. Thus there are omissions to fill up the amount and the name of the certificate debtors at the bottom of the Form providing as “I hereby certify that the above informationed sum of Rs.” due to the above named….certificate debtor”. This is minor omission and is of no consequence inasmuch as the amount payable by the certificate debtors and the name and particulars of the certificate debtors are already stated above in the form. On perusal of the requisition in Form-2 and demand certificates in Form-1, I find that requisitions in prescribed Form were made in substantial compliance with the provision of Sub-section(2) of Section 5 and the demand certificates were also signed by the Respondent No. 3 in prescribed Form in substantial compliance with the provisions of Section 6 of the Act.
12. In C.W.J.C. No. 1857 of 1992 (R) additional ground has been urged on behalf of the petitioners assailing the requisition made under Sub-section(2) of Section 5 of the Act in the prescribed Form, inasmuch as the Requisitioning Officer recorded his satisfaction after the enquiry that the amount of Rs. 9,41,946.12 was due from M/S. Jain Trading, although the requisition has been issued against Jagannath Trading which is quite different distinct. But on perusal of the requisition made in Form-2 (Annexure 12 to the Supplementary Affidavit filed by the petitioners) I find that all the columns are filled up and the name of the certificate debtor has correctly been stated as Jagannath Trading and the name of the proprietors and guarantors’ have also been stated. However, at the bottom of the form Jain Trading is stated instead Jagannath Trading. I find force in the submission of the learned Counsel for the Respondent-Bank that it is an insignment mistake and is of no consequence.
13. The decisions of this Court on which reliance has been placed in support of the submission made on behalf of the petitioners, have no application on the facts of the instant cases. On perusal of me orders passed by the Respondent No. 3 in disposing of the objections filed in these cases, I find that the Respondent No. 3 has disposed of the objections with speaking orders, touching all the points raised and the orders do not suffer from any infirmity.
14. For the reasons stated above, there is no merit in these writ petitions. The petitions are, therefore, dismissed. I make no order as to costs. It was, also submitted on behalf of the petitioners that considering their hardships, the petitioners may be allowed to clear the dues under the certificates, by easy instalments. Rule 56 of the Rules framed under Bihar and Orissa Public Demand Recovery Act, provides that payment of the amount due under any certificate may be made by instalments, if the Certificate Officer in whose office the certificate is filed, so directs. The petitioners, may, if so advised, approach the Certificate Officer for payment of the amount due under the certificates by instalments and it will for the Certificate Officer to decide on consideration of the application of the petitioners, as to whether payments by instalments be allowed or not.
Gurusharan Sharma, J.
15. I agree.