Court No. - 36 Case :- WRIT - C No. - 40904 of 2010 Petitioner :- M/S New Chep Cloth House Respondent :- State Of U.P. And Others Petitioner Counsel :- B.D. Pandey Respondent Counsel :- C.S.C.,P.K. Tripathi 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 is to deposit an amount of Rs. 75,000/- directly in the
concerned bank within a period of one month from today to show
bonafide on his part.
ii) If petitioner deposits the above amount within the time so
allowed then he is permitted to deposit the remaining amount
directly in concerned Bank in four equal instalments In
calculating the arrears the amount (if any) already paid will be
adjusted.
ii) The first instalment may be deposited by 31st October, 2010,
second instalment by 31st January,2011, third by 30th April, 2011
and fourth by 31st July, 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 only half of the
recovery charges will 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 :- 16.7.2010
M.A.A.