Court No. - 36 Case :- WRIT - C No. - 37746 of 2010 Petitioner :- Birendra Respondent :- State Of U.P. & Anr. Petitioner Counsel :- Jamwant Maurya Respondent Counsel :- C.S.C.,Shailendra Kumar Singh Hon'ble Sheo Kumar Singh,J.
Hon’ble Rajesh Chandra,J.
Heard learned counsel for the petitioner, learned counsel who appears
for the Bank and learned Standing Counsel.
Challenge in this petition is recovery proceeding by which a particular
amount is sought to be recovered from the petitioner.
Counsel for the petitioner has made statement at the bar that this is
the first writ petition against the recovery proceeding and this fact has
also been stated in the writ petition.
Submission is that if reasonable time is allowed to pay the amount
sought to be recovered, 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 Bank submits 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 the petitioner’s future prospects and thus if
for justifiable reason the amount in terms of the agreement has not
been paid and now petitioner has bonafide intention to pay the amount
within a reasonable time then if that liberty is given, it will serve the
interest of both sides i.e. petitioner may be saved from the riggers of
coercive process i.e. arrest, auction of the properties and at the same
time respondent bank will get its full amount with interest. Thus for
grant of reasonable time, if that is to advance justice, respondents may
not have any objection.
In view of aforesaid, this Court feels in the ends of justice that amount
sought to be recovered be permitted to be deposited.
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 in five equal instalments In calculating
the arrears the amount (if any) already paid will be adjusted.
ii) The first instalment may be deposited by 31st August, 2010, second
instalment by 30th November, 2010, third by 28th February, 2011,
fourth by 31st May, 2011 and fifth by 31st August, 2011. These
deposits may be made before the branch of the Bank from where the
loan was taken. In case instalments are deposited in the Bank then the
recovery charges will not be recovered from the petitioner.
iii) During period of deposit 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.
iv) Petitioner may file an application for supply of statement of account
along with 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 recovery process in any manner, if any other writ petition has
been filed before this Court against the recovery proceeding for the
loan amount.
vii) If any fact given from the side of the petitioner is found to be
incorrect by the bank authorities, it will be open for them to move an
application for modification/recall of the order.
With the aforesaid writ petition stands disposed of.
Order Date :- 2.7.2010
Sachdeva
