Court No. 21
Civil Misc. Writ Petition No. 33147 of 2010
Balau Ram
Versus
State of U.P. and others
Hon'ble V.K.Shukla,J.
Present writ petition has been filed by petitioner questioning the
validity of the auction notice dated 02.04.2010.
Brief background of the case is that petitioner had taken loan and said
loan amount has not been re-paid in this background recovery proceeding
was initiated against petitioner and at that stage petitioner preferred Civil
Misc. Writ Petition No. 21107 of 2002 before this Court and this Court has
proceeded to pass following order which is being quoted below:
“Heard learned counsel for the petitioner, learned Standing counsel
Mr. N. Mishra, Advocate who has appeared for respondent no. 3 and also
perused the record.
By means of this petition filed under Article 226 of the Constitution of
India, petitioner prays for issuance of a writ order or direction in the nature
of certiorari quashing the citation dated 21.04.2002 issued by respondent no.
2. Prayers for issuance of a writ, order or direction in the nature of
mandamus commanding the respondents to supply upto date statement of
account to the petitioner and not to adopt coercive measure against the
petitioner in the recovery proceedings have also been made.
It appears that petitioner took loan from respondent no. Bank but
committed default in payment of amount of loan. Consequently, respondent
Bank issued a recovery certificate on the basis of which the amount in
question is being recovered from the petitioner as arrears of land revenue.
Learned counsel for the petitioner submitted that petitioner is willing to
deposit for him to deposit the whole amount in lump sum. He prayed that
petitioner may be permitted to deposit the amount in question in four
instalments of equal amount within twelve months.
In view of the aforesaid fact, this petition is disposed of finally with
the direction that recovery proceedings initiated against the petitioner shall
remain stayed for a period of twelve months. The petitioner is further
directed to deposit the amount in question in four instalments of equal
amount. The first instalment shall be deposited within a period of three
months, the second instalment within a period of six months, the third
instalment within a period of nine months and the fourth and last instalment
within a period of twelve months, from today. The amount, if any, already
2deposited by the petitioner (or exempted under G.O. dated 30.05.1990) shall
be adjusted. The property- movable or immovable of the petitioner, if any
attached in the recovery proceedings, after first instalment is deposited and
security other than cash or bank guarantee for the balance is furnished to the
satisfaction of the Competent Authority, shall be released in favour of
petitioner unless sold and the sale has already been confirmed.
In case the property of the petitioner has not been attached or sold
the respondent shall not be entitled to charge the recovery charges from the
petitioner, in view of law laid down in Mirza Javed Murtaza Vs. U.P. Financial
Corporation Kanpur and another, AIR 1983 Allahabad 234. The respondent
Bank will charge simple interest from the petitioner in view of the decision of
Apex Court in Corporation bank Vs. D.S. Gowda and another J.T. 1994 (7)
SC-87 unless the agreement of loan entered into between the parties
provided to the contrary as held by a Division Bench of this Court in the case
of State Bank of India Chaghsara, Gorakhpur through its Manager, Sri Ashok
Kumar Sharma Vs. Ram Bahal and others reported in 2000 All C.J. 663.
After first instalment is deposited the respondent Bank shall furnish
statement of account to the petitioner in terms of direction noted above. The
amount, if any found due, shall be deposited by the petitioner within the time
specified above.
If the whole amount is paid by the petitioner, as indicated above the
recovery proceedings initiated against him shall be dropped failing which the
respondents shall be at liberty to recover the amount outstanding against thepetitioner in accordance with law.”
Thereafter order passed by this Court has not been complied with and
the entire loan amount in question has not been deposited, petitioner has
again filed Civil Misc. Writ Petition No. 13726 of 2004 and this Court passed
following order which is being quoted below:
” For the purpose of agriculture, loan has been taken from the
concerned Bank/Samiti. It is said that part of the loan has been paid but
entire loan amount could not be paid. Respondents have issued recovery
process for recovering the loan amount as arrears of land revenue. Hence
the present writ petition.
Heard learned counsel for the petitioner, learned counsel who appears
for the Bank/Samiti and learned Standing counsel.
The counsel for the petitioner has made statement at the bar that this
is the first writ petition against the recovery proceedings and this fact has
also been stated in the writ petition. According to the petitioner, he could
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not pay the loan amount due to unavoidable circumstances.
At this stage without challenging correctness of amount sought to be
recovered a prayer has been made that if amount sought to be recovered is
permitted to be deposited in easy instalments deposit of entire amount
alongwith interest due till date can be made.
In view of aforesaid this Court feels in the ends of justice that amount
sought to be recovered be permitted to be deposited in the following
manner, which will protect loanee depriving of immovable properties casing
irreparable loss to the family which is to occur on account of coercive
process and at the same time, concerned Bank/Samiti will also get its
amount. To the aforesaid learned counsel appearing for Bank/Samiti also
have no objection.
Accordingly this petition is disposed of with the following directions:
(i) Petitioner may deposit the entire amount sought to be recovered directly
in concerned Bank/Samiti 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 the end of 30th June, 2004,
second instalment by 30th September 2004, third by 31st December 2004,
fourth by 30th March, 2005, fifth by 30th June, 2005 and sixth by 30th
September 2005. These deposits may be made before the branch of the
Bank/samiti from where the loan was taken in case instalments are
deposited in the Bank/Samiti then the recovery charges will not be
recovered from the petitioner.
(iii) During period the recovery proceedings will be kept in abeyance. In
case petitioner defaults in depositing any of the instalments within the
above stipulated time it will be open to the respondents to start recovery
proceedings again by taking coercive process at once to which the petitioner
undertakes not to challenge.
(iv) Petitioner may file an application for the statement of account alongwith
the duly stamped self addressed envelope. In case any such application is
filed, the concerned branch of the Bank will give the same to the petitioner
after deposit of first instalment within fifteen days.
(v) This order will not affect any auction if it has already taken place. In that
event the petitioner may take appropriate legal proceedings to set aside the
auction under U.P.Z.A & L.R. Act and Rules 1952 or file a suit in accordance
with law.
(vi) It is clarified that this order will not be operative and will not come in
way of recovers process in any manner, if any, other writ petition has been
filed before this Court against the recovery proceeding for the loan amount.
(vii) Property (Immovable/Moveable) belonging to the petitioner, if
attached will be released (unless it has been auctioned) after deposit of first
instalment.”
Petitioner has tried to contend that pursuant to order dated
05.04.2004 petitioner tried to level best to make deposit but it was not
accepted in this background Contempt Application No. 336 of 2005 has been
filed and then petitioner submits that he deposited sum of Rs. 1,86,500/- on
03.09.2005 which was sought to be recovered though recovery citation
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dated 23.02.2004. Petitioner has contended that respondent-Bank has not
issued no dues certificate and then thereafter letter has been issued
showing balance amount Rs. 5,08,734/-. Petitioner submits that at this
stage he preferred Civil Misc. Writ Petition No. 37903 of 2009 and this Court
passed following order which is being quoted below:
” Upon hearing the learned counsel for the petitioner, this Court
disposes of the writ petition directing the petitioner to make an
appropriate application before the respondent bank for supply of the
statement of account. If such an application is made, the respondent
bank will supply a statement of account with regard to the loan taken
by the petitioner within 15 days.”
Petitioner submits that thereafter petitioner represented the matter
and statement of account has been issued showing balance amount of Rs.
6,04,013/-. Petitioner submits that thereafter recovery citation has been
issued. Once amount in question has been disclosed and same has not been
re-paid then recovery is only inevitable conclusion. In this background no
interference is warranted by this Court. In case petitioner is questioning the
validity of the amount sought to be recovered then under the provision as
contained under U.P. Co-operative Societies Act, 1965, petitioner can always
move application under Section 70. As on date as amount is outstanding
then there is no shortcoming in the recovery proceeding.
Consequently, writ petition is dismissed.
Dated 12.07.2010
Dhruv