INDUSTRIAL CO Vs. MONIRAM DAS

JUDGEMENT

(1.) This appeal is directed against the order dated 14.9.2004 granting injunction under Order 39, Rules 1 and 2 of the Civil Procedure Code, restraining the appellant/defendant from acting upon the order dated 30.6.2004 passed in Bakijai Case No. 3/2004, till disposal of the suit filed by the respondent/plaintiff.

(2.) A suit being Title Suit No. 332 of 2004 has been instituted by the respondent as plaintiff against the appellant as defendant No.I and one Bikram Hazarika, Bakijai Officer as defendant No. 2 in the Court of the learned Civil Judge (Senior Division) No. 1. Kamrup at Guwahati praying for a decree declaring the certificate and that the notice of demand dated 8.4.2004. the order dated 30.6.2004 as well as the entire proceeding in Bakijai Case No. B-3 of 2004 are illegal.improper and not binding on the plaintiff, being collusive and fraudulent,for damages to the tune of Rs. One Crore Thirty Five Lakhs and also for perpetual injunction restraining the defendants from acting upon the order dated 30.6.2004. An application under Order 39, Rules 1 and 2 read with section 151 of the Code of Civil Procedure was also filed praying for a temporary injunction re- straining the defendants/opposite parties from acting upon the order dated 30.6.2004 passed in Bakijai Case No. B-3/2004, which was registered as Misc.(J) Case No. 79/2004.

(3.) The brief fact leading to the filing of the aforesaid suit along with the application for temporary injunction is that, the appellant Co-operative Bank after obtaining a Co-operative Certificate of Demand instituted a bakijai (recovery) proceeding being B-3/2004 before the Bakijai Officer of Co-operative Societies against the respondent for recovery of the loan amount of Rs. 9,46.401.22 under the Bengal Public Demand Recovery Act, 1913 (for short 1913 Act) which amount was found due and payable by the respondent against the loan sanctioned by the appellant on 7.4.1998 under overdraft facility. The said overdraft facility was ex- tended subsequently at the request of the respondent to Rs. 5 lakhs with landed property as security. The said loan taken by the respondent by way of overdraft facility for the purpose of a Chakki bill was again ex- tended to Rs. 7 lakhs and then to Rs. 12 lakhs. On 3.4.2003 another amount of Rs. 1.65.000.00as sanctioned to the respondent as per his application. The amount for which the Co-operative Demand Certificate was issued was found due and payable by the respondent against the said loan facilities.The respondent on receipt of the notice issued under section 7 of the 1913 Act, filed an application under section 9 of the said Act admitting taking of credit facility of Rs. 12 lakhs against landed property as security but stating that there are certain irregularities in the account maintained by the bank, without specifying what are the irregularities and also that the rate of interest charged was highly irregular and in violation of the R.B.I. guidelines. The said Bakijai proceeding was fixed on 10.5.2004 for hearing on the petition filed by the respondent. on which date the said application of the respondent was rejected, as the respondent did not turn up. The Bakijai Officer on 10.5.2004 directed the execution of the demand certificate.However, the Bakijai Officer gave another opportunity to the respondent for hearing on his said application under section 9 of the Act, which was heard on 30.6.2004 and by the order passed on the same day rejected the said application on merit by giving 15 (fifteen) clays time to repay the certificate amount. It was also ordered that on failing to pay the amount, the certificate shall be executed. The respondent thereafter without filing any appeal as provided under section 51 of the Act, instituted the present suit together with an application for temporary injunction under Order 39, Rules 1 and 2 read with section 151 of the Civil Procedure Code, alleging inter alia that the appellant Bank at the behest of its officers and staff made ameses of the loan account and filed the Bakijai proceeding on the basis of the said account which was not maintained in the usual and ordinary course of the Bank's business, that there were discrepancies in the bank account. that though in the Bakijai proceeding the respondent prayed for supplying certain documents, all of those were not supplied,the Bakijai Officer heard the application filed under section 9 of the 1913 Act on 30.6.2004 and though declared in open Court that the order will be delivered on 2.7.2004, passed the order on 30.6.2004 itself, but denied to supply the certified copy though applied for,for which he had to approach the Registrar of Co-operative Societies,that during pendency of the said bakijai proceeding the certificate was sought to be executed even before passing of the order dated 30.6.2004,that before issuing the certificate of demand no enquiry under the Assam Co-operative Societies Act was made. that the Bakijai Officer acted in collusion with the appellant Bank by abusing the process of law and he acted mala fide and arbitrarily.