ORDER
Binod Kumar Roy and S. K. Jain,
JJ.
1. The petitioner has come up with
two fold prayers (i) to quash the recovery proceedings started against him on the basis of recovery certificate issued by the Punjab National Bank, Branch Sohrauna, Khadda Bazar, District Deoria (respondent No. 4) in purported exercise of powers under Section 3 of U. P. Act No. 23 of 1972 and (ii) to quash the Citation dated May 4, 1991 issued by the Tahsildar, Padrauna, district Deoria (respondent No. 3) as contained in Annexure-VI.
The Facts :
2. According to the petitioner, he is sole proprietor of the shop ‘Verma Tyre House’, Khadda Bazar, District Deoria ; his date of birth is April 7, 1972, which fact has also been mentioned in his High School certificate (photocopy appended as Annexure-1) : on October 19, 1989 a loan was advanced to him on cash credit and a Cash Credit Account No. 64 was opened by respondent No. 4 on security of tyre, rim and other goods of his shop : on July 27, 1990 respondent No. 4 through its Manager sent letter to M/s. Verma Tyre House intimating that the account has become irregular : oil coming to know about the alleged debt on 7.2.1991. he filed a declaratory suit bearing Civil Suit No. 185 of 1991 before the Munsif, Kasia. seeking decree of declaration that the alleged debt is fraudulent, illegal and void on the ground that he was minor at the relevant time ; the Munsif vide his order dated April 25, 1991 held that since the alleged debt is of more than Rs. One lac and as such, he lacks pecuniary jurisdiction and directed to file the plaint before the competent Court : against the order aforementioned the petitioner went up in appeal before the District Judge, Deoria, which was registered as Misc. Civil Appeal, which is still pending ; during the pendency of the aforementioned civil proceeding, the recovery certificate was issued ; as no relief was granted in the suit, he filed C.M.W.P. No. 9136 of 1991 before this Court for quashing the recovery proceeding : as the recovery certificate was not available and no citation was issued by the Tahsildar,
this writ petition was withdrawn with the permission of this Court : since the alleged debt is not a loan or advance or grant given to him by way of financial assistance by the State Government nor was there any agreement between the petitioner and the Bank that the alleged debt is recoverable as land revenue, the provisions of the Act in question have been illegally invoked and hence the recovery proceedings including the citation are liable to be quashed.
3. In the counter-affidavit and the supplementary counter-affidavit respondent No. 4 has come up with following defence :
The petitioner made an application for financial assistance to the extent of Rs. 1 lac on 17.10.1989 ; an affidavit was got affirmed from him that he had not taken any loan from any other Bank before the Notary Public, Padrauna in which he stated his age as 22 years : thereafter the loan was sanctioned by respondent No. 4 under the Village Development and the Eradication of Poverty Programme announced by the Union Government and the State Government under the 20 Point Programme which was adopted by it as contained in “Gramin Vikas Evam Garibi Unmoolan Men PNB Ka Yogdan para 4.3 ; accordingly he is stopped from stating anything to the contrary ; his age as mentioned in the High School certificate is not conclusive ; in his letter, in his own handwriting. dated 19.4.1990 he had admitted the then outstanding loan as Rs. 1,45,038.40 P. and deposit of Rs. 5,000 in cash by him ; on March 31. 1991 the dues of the petitioner stood at Rs. 1,25,570.40 P. ; the order was correctly passed by the learned Munsif ; on his failure to repay the loan, despite promises and assurances, the Bank had no alternative but to issue the recovery certificate against him as well as the guarantor ; as this Court was not inclined to grant any relief to him as the question
of his age (minority) was disputed one. he got his writ petition dismissed as withdrawn in which he had withheld the information in regard to filing of his suit : the present writ petition is barred on account of res judicata as his earlier writ petition was dismissed without any leave to file a fresh writ petition ; the provisions of the Act are fully applicable to the loan in question ; and that the writ petition is liable to be dismissed with special cost.
4. The petitioner has filed a rejoinder to the counter-affidavit but not to the supplementary counter-affidavit.
The Submissions :
5. Sri Ram Niwas Singh, learned counsel for the petitioner, contended as follows :
(i) Since the loan was not advanced pursuant to any State Sponsored Scheme, the provisions of the Act were inapplicable and accordingly the impugned recovery proceedings and the citation both are liable to be quashed.
(ii) The agreement was void for the reason that at the relevant time the petitioner was minor and not major.
6. Mr. K. L. Grover, learned counsel appearing on behalf of respondent No. 4, on the other hand, contended as follows :
(i) Pursuant to the 20 Point
Programme, respondent No.
4, which is a nationalised
bank, had agreed for its
implementation and thus
under the State Sponsored
Scheme financial
assistance was provided to
the petitioner. In this
regard Sri Grover took us to
Chapter XXIII, pages 638-
640 of a Book named
Tannan’s Banking Law and
Practice in india, 18th
Edition, Reprint March.
1995.
(ii) The petitioner has falsely claimed himself to be a minor to escape from the rigor of law.
(iii) Since no leave was granted
to the petitioner in his
earlier writ petition to file a
fresh writ petition this writ
petition is barred on
account of res
judicata/ constructive res
judicata.
(iv) in view of the pendency of the civil proceeding before the District Judge the instant writ petition is not maintainable.
(v) Even otherwise also the petitioner is also not entitled to equitable relief for the reason that though he was commanded by this Court vide its order dated July 11, 1991 to deposit 1/3rd of the amount due against him within three weeks while staying further proceedings of the recovery proceedings, he refused to deposit that amount. Yet another opportunity granted to him by order dated 8.8.1991 was also not availed.
(vi) Consequently this writ petition be dismissed with exemplary cost.
7. Sri Singh, in reply, contended as follows :
(i) The case set-forth by the Bank in its supplementary counter-affidavit runs counter to its original pleadings in the counter-affidavit and consequently be not accepted as true by us. The agreement which has been brought on the record by respondent No. 4 does not show that the loan was advanced under the 20 Point Programme.
(ii) Since against the order rejecting the plaint on account of absence of pecuniary jurisdiction the
appeal was pending against that order, it cannot be said that the suit is pending and consequently the objection raised by Sri Grover has no legs to stand.
(iii) Since the recovery proceedings had not commenced, therefore, the dismissal of the first writ petition will not bar the entertainment of the instant writ petition on account of the principles of res judicata/constructive res judicata.
Our Findings :
8. Firstly, we clarify that we exercise our jurisdiction “Ex debito Justitiae”.
9. Paragraph 3 of the supplementary counter-affidavit, filed on 18.11.1991, reads thus :
“That the loan was advanced to the petitioner under the Village Development and the Eradication of Poverty Programme announced by the Union Government and the State Government under 20 Point Programme adopted by Punjab National Bank contained in “Gramin Vikas Evam Garibi Unmoolan Men PNB Ka Yogdan para 4.3.”
9.1 Despite expiry of more than 8 years, no rejoinder has been filed by the petitioner to this supplementary counter-affidavit.
9.2 The book referred to by Sri Grover shows the list of beneficiaries to be assisted under the 20 Point Programme, 1982. The relevant part reads thus :
“Beneficiary
under the New 20-Point
Nature
of assistance activities covered
Category
of priority sector
X X
X X
X X
(iii) Persons engaged in retail
trade, small business, etc.
(c)
Finance for fixed and working capital
Retail
Trade/ small business
9.3 The aforesaid facts pleaded by respondent No. 4 in the absence of any rebuttal by the petitioner on oath, merely on account of non-mentioning of that fact in the agreement, is of no consequence. Mr. Singh failed to show any requirement of law to state in the agreement that the loan is being advanced under the 20 Point Programme. It is not possible to accept the bald submission made by Mr. Singh rather we accept the correctness of the statement made by the Bank.
9.4 From a bare reading of the provisions of the Act, it is crystal clear that such a loan comes within its purview.
9.5 Accordingly, we reject the first submission made by Sri Singh.
10. Now we come to the second submission as to whether the petitioner was in fact minor when he had executed the agreement?
10.1 in paragraph 3 of the writ petition, he has stated as follows :
That the petitioner’s date of birth is April 7, 1972 and the said date is also mentioned in the High School certificate of the petitioner. A photostat copy of the High School certificate is being enclosed herewith and is marked as Annexure-1 to this writ petition.”
10.2 This statement has been asserted by the petitioner to be true to his knowledge in his affidavit.
10.3 These facts have been denied by respondent No. 4 in paragraph 5 of the counter-affidavit, which reads thus :
“That the contents of paragraph 3 of the writ petition relating to the age of petitioner are denied and in reply, it is submitted that before advancing loan to the petitioner, an affidavit was got affirmed from the petitioner to the effect that he had not taken a loan from any other banks. The said affidavit was affirmed before Notary Public Padrauna. The petitioner had given his age as 22 years in the
said affidavit. The petitioner is stopped from stating anything to the contrary.”
10.4 The fact that the petitioner was born on April 7, 1972 cannot be true to his personal knowledge. It has to be based on information given by those who were present at the time of birth or otherwise competent to state that fact or some other relevant evidence in form of affidavit of either of the parents etc.
10.5 it is well known that the natural age of a student is usually not mentioned at the time of his admission in any school. In Brij Mohan Singh v. Priya Brat Narain Sinha and others, AIR 1965 SC 282, Placitum (b), it has been stated as follows :
“In actual life, it often happens that persons give false age of the boy at the time of his admission to a school so that later in life, he would have an advantage when seeking public service for which a minimum age for eligibility is often prescribed.”
10.6 According to the petitioner himself (as stated in paragraph 10 of the writ petition), the first writ petition was filed for quashing the recovery proceedings initiated by the respondent Bank. The order dated April 1. 1991. dismissing this writ petition reads thus :
“After considerable arguments, learned advocate for the petitioner has applied for permission to withdraw the petition. Petition allowed to be withdrawn and dismissed for want of prosecution. No order as to costs.”
10.7 Admittedly, no leave was
sought for by the petitioner to sue afresh. In view of the ratio laid down by the Apex Court in M/s. Sarguja Transport Service v. State Transport Appellate Tribunal, AIR 1987 SC 88. In the absence of grant of permission by this Court to the petitioner to sue afresh, the instant writ petition raising the same question of his alleged minority is not maintainable, as rightly, argued by Sri Grover.
11. To crown all, the petitioner’s civil proceeding, on his own case set-forth in the writ petition is pending adjudication in appeal before the District Judge, Deoria. The argument of Sri Singh that the pendency of the appeal cannot be held to be pendency of the suit is not acceptable to us as it is well settled that appeal is continuation of the suit.
12. The petitioner is in a hopeless position. Twice he was granted opportunity to deposit 1/3rd of the due amount by this Court earlier but he showed no respect to the orders passed by this Court.
13. For these reasons, we dismiss
this writ petition with cost quantified to the tune of Rs. 1,000 only, which the petitioner must pay to respondent No. 4 within three months.
