RAJENDRA PRASAD Vs. STATE OF U P

JUDGEMENT

(1.) WE have heard learned counsel for the petitioner and Sri A.K.Tiwari, Advocate, holding brief of Sri Nripendra Mishra, learned counsel for respondent no.4 as well as learned Standing Counsel for the State-respondents. Challenge in this petition is recovery proceeding. Learned 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. Petitioner has taken loan of Rs. 2,00,000/-(Rs.Two lacs) in the year 2006. According to the petitioner he could not pay the entire amount due to unavoidable circumstances as stated in the writ petition on account of which entire payable amount up to the period of last instalment. which is huge one to the tune of Rs. 2,17,326/- etc. is sought to be recovered by adopting coercive methods including the attachment and arrest. Submission is that if reasonable time is allowed to pay the amount sought to be recovered, petitioner may be able to pay the same. Learned counsel for the petitioner, on instructions, also gave an undertaking that in case, he is allowed to pay the amount under recovery in some easy instalments and if any default is committed, the petitioner shall pay a cost of Rs. 50,000/- over and above the amount, which remains to be recovered from the petitioner and the writ petition may be deemed to be dismissed in that event. To the aforesaid, learned counsel appearing for Bank submits that although in some of the cases it has been said that against the recovery proceedings unless some illegality is pointed out the Court may not interfere but at the same time submission is 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 rigour of coercive process i.e. arrest, auction of the properties etc. and at the same time the 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 the amount sought to be recovered be permitted to be deposited in the following manner, which will protect loanee from depriving of immovable/movable properties causing irreparable loss to the family which is to occasion on account of coercive process and at the same time, concerned Bank will also get its amount. 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 can be made. Accordingly, this petition is disposed of with the agreement of the learned counsels for the parties with the following directions: I) Petitioner may deposit the entire amount sought to be recovered directly in concerned Bank in four instalments. ii)During period of deposition, the recovery proceedings will be kept in abeyance. In case petitioner defaults in depositing any of the instalments within the stipulated time, this writ petition shall stand dismissed with a cost of Rs. 50,000/-, which shall also be recoverable as arrears of land revenue in addition to the amount sought to be recovered from the petitioner and 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. iii)In first instalment the petitioner shall deposit Rs. 50,000/- (Rs. Fifty thousand only) with the Bank within one month from today i.e. by 06.5.2009. iv)Petitioner may file an application for supply of statement of account along with duly stamped self addressed envelope within one week of the deposit of first instalment. 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)The petitioner thereafter if finds anything wrong in the statement of accounts, may file his objection within 15 days which shall be considered and decided by the Bank within one month from the date of receipt of such objection, if any. vi) In case the petitioner does not file any objection, the rest of three instalments of equal amount shall be paid by him within 9 months in three quarterly equal instalments from the date he received the statement of accounts from the Bank. vii) If he files any objection then he shall pay rest of three instalments of the equal amount as per the communication of the Bank within nine months in three quarterly instalments commencing from the date of communication of the order of the Bank passed on his objection. viii) 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. ix) 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. x) Property belonging to the petitioner, if attached, will be released by the concerned Tehsil authority (unless it has been auctioned) after deposit of first instalment. xi) 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. xii) The petitioner shall also pay cost of recovery charges and up to date interest alongwith the last instalment, which shall be communicated by the Bank at least 15 days before the date of payment of last instalment. With these directions, the writ petition stands disposed of.