Punjab-Haryana High Court
Pawan Kumar vs Uco Bank And Another on 29 November, 2012
Author: G. S. Sandhawalia
Bench: Ajay Kumar Mittal, G.S. Sandhawalia
CWP No. 6024 of 2012 1
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CWP No. 6024 of 2012
Date of Decision:- November 29, 2012
Pawan Kumar ..............PETITIONER(S)
vs.
UCO Bank and another ...........RESPONDENT(S)
CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL
HON'BLE MR. JUSTICE G.S. SANDHAWALIA
Present:- Mr. S.K. Rana, Advocate,
for the petitioner.
Mr. Vinod Kataria, Advocate,
for respondent no.1-bank.
Mr. Nitin Kaushal, AAG, Haryana,
for respondent no. 2.
G. S. SANDHAWALIA, J.
1. The present writ petition has been filed under Articles 226 and 227 of the Constitution of India praying for issuance of a writ in the nature of certiorari for quashing order dated 13.10.2011 (Annexure P-3) passed by respondent no. 2 for recovery of the amount of `3,05,028/- and the subsequent recovery warrants dated 20.12.2011 (Annexure P-5) issued by respondent no. 2 to the Tehsildar, Bilaspur.
2. The case of the petitioner is that he had approached respondent no.1-bank on 03.05.2005 for grant of loan of `1,00,000/- and the same was granted and paid to him. The petitioner had deposited an amount of `33,000/- with the bank out of the total loan amount and he had been told thereafter that the loan amount had been waived off by the Government and he need not to pay back the left over loan amount. The petitioner had never approached the bank for clarifying the status of the loan account. The bank thereafter instituted a suit before respondent no. 2 on 21.06.2011 for recovery of the loan amount of `2,00,000 i.e. KCC of `1,00,000 and term loan of `1,00,000. The petitioner being a marginal farmer had taken only an amount of `1,00,000 from the bank by mortgaging his small piece of land measuring 16 CWP No. 6024 of 2012 2 kanals, which was the only available land and the source of livelihood of the petitioner and his family. He had stopped paying back the loan amount on the bona fide assumption that the loan had been waived off and the bank had instituted the false case without giving any notice to him. That on receipt of summons from respondent no. 2, the petitioner had prayed for giving statement of accounts which was not provided to him. He, however, filed the reply dated 22.09.2011. Respondent no. 2 had obtained his signatures on 13.10.2011 directing him to repay the loan amount by 15.12.2011. The petitioner had requested that he was a marginal farmer and was not in a position to re-pay the loan amount and he can only pay the same in easy and small installments. The petitioner had objected to the amount claimed in the suit and that the amount deposited by him was not accounted for towards his loan account and that the bank had charged very high rate of interest though it had been promised that the loan would be @ 4% per annum. As per mortgage deed dated 23.04.2005, the petitioner was to be granted an amount of `2,00,000/- as term loan but he had been granted only `1,00,000/- on 07.05.2005. The mortgage deed was executed on 03.05.2005 and the loan was only granted under the head of term loan. The petitioner's case was to be considered under "The Haryana Relief of Agricultural Indebtness Act, 1976" but respondent no. 2, in collusion with respondent no. 1, passed the decree and the award arbitrarily on 13.10.2011. Accordingly, respondent no. 1 had filed execution petition, which was allowed by respondent no. 2 by issuing recovery warrants dated 20.12.2011 without giving any notice of the execution proceedings to the petitioner. The petitioner was not allowed to file objections to the execution petition. The Tehsildar, Bilaspur, under the garb of the recovery warrants, was wanting to auction the land of the petitioner whereas the petitioner was ready to clear the account in small and easy installments after he was shown the actual statement of accounts. Accordingly, the writ petition was filed and the counsel for the petitioner undertook to pay `25,000/- and the interim relief of stay of dispossession was granted to the petitioner. The petitioner was also directed to bring a demand draft of `40,000/- to show his bona fides, which was deposited on 17.09.2012 and photocopy of the receipt was produced before this Court.
3. In the reply filed by the bank, the stand taken was that the petitioner had applied for grant of agricultural loan to the tune of `2,00,000/- i.e., `1,00,000/- for Kisan Cash Credit CWP No. 6024 of 2012 3 (KCC) and `1,00,000/- for term loan, which was disbursed on 07.05.2005. The petitioner committed default in repayment of loan as per the terms and conditions of the loan agreement and failed to regularize his account. The bank filed an application under Section 8(1) of The Haryana Agricultural Credit Operations and Miscellaneous Provisions (Banks) Act, 1973 (hereinafter referred to as 'The Act') read with amended Act of 1978 in the Court of respondent no. 2 and during the pendency of the application, the petitioner stated that he was ready and willing to deposit the entire outstanding amount by 15.12.2011. In spite of the undertaking, the petitioner did not deposit the amount and, therefore, execution application was filed on 20.12.2011 and warrants of recovery were issued. The bank was adopting legal means to effect recovery from the petitioner in pursuance of the legal and valid decree dated 13.10.2011. The factum that any bank official told the petitioner that the loan amount had been waived off was a concocted story and the petitioner had mortgaged his property on 03.05.2005 for a sum of `2,00,000/-. It was wrong to allege that the case was instituted without notice to the petitioner and rather he failed to make the payment of the outstanding loan amount. The whole existing position relating to his accounts and copies of statement of accounts were also supplied to him and that he had made a statement that he would deposit the entire loan amount on or before 15.12.2011. The interest was charged as per the loan agreement. No objection was raised by the petitioner before respondent no. 2 when the decree was correctly passed which was legal and valid and there was no need of filing of objections as he had himself opted to make the payment in lumpsum on or before 15.12.2011.
4. Counsel for the petitioner has submitted that the petitioner had only taken a loan of `1,00,000/- and not taken the additional loan of `1,00,000/- and was willing to repay the said amount alongwith reasonable rate of interest but he could not be fastened with the liability of second installment of `1,00,000/- under the head 'KCC scheme'. The record of the bank was called for, from which, it transpired that the sum of `1,00,000/- which has been given to the petitioner under the KCC scheme was given by way of cash on a written application thumb marked and thumb impressions find mention behind the loose cheque issued by the bank. The said amount was never deposited in the account of the petitioner whereas the other sum of `1,00,000/- was deposited in his account and the amount was not disbursed in cash. The CWP No. 6024 of 2012 4 register produced by the bank also shows that the petitioner's name finds mention but there is only one faint thumb impression against his name and another person whereas other persons have signed against the said receipts. Thus, prima facie a doubt arises as to whether the defence taken by the petitioner regarding the non-disbursement of `1,00,000/- is valid or not. Respondent no. 2, in the present case, had proceeded and decided the issue in a summary and arbitrary manner on the basis of the statement made by the petitioner whereby he had allegedly undertook to pay the amount by 15.12.2011. Counsel for the petitioner is now also contesting that the petitioner did not give the statement voluntarily. Since the disbursement of `1,00,000/- is disputed by both the parties and once disputed questions of fact arise for consideration in writ jurisdiction, then this Court would not decide the issue on merits. The Hon'ble Apex Court in City and Industrial Development Corporation Vs. Dosu Aardeshir Bhiwanidwala and others (2009) 1 SCC 168 had laid down the following principles that the writ jurisdiction shall not be invoked when:-
"(a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved;
(b) the petition reveals all material facts;
(c) the petitioner has any alternative or effective remedy for the resolution of the dispute;
(d) person invoking the jurisdiction is guilty of unexplained delay and laches;
(e) ex facie barred by any laws of limitation;
(f) grant of relief is against public policy or barred by any valid law; and host of other factors."
5. Thus, the present writ petition is disposed of with liberty to the petitioner to seek alternative remedy in accordance with law.
(G.S. Sandhawalia)
Judge
29.11.2012 (Ajay Kumar Mittal)
shivani Judge
CWP No. 6024 of 2012 5