YAMUNA PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) The present writ petition has been filed for quashing the entire proceeding of execution case no. 55/2000 which was initiated against the petitioner by the respondent-Certificate Offer (Annexure 1) whereby he is proceeding to realize Rs. 17,679.00/- from the petitioner on the basis of a requisition dated 10.10.2000 for realization of a money decree prepared on 22.06.1987.

(2.) The short facts of the case according to the petitioner are that the respondent nos. 7 to 13 and two other persons namely Saryoo Sah and Suresh Prasad Singh (defendant nos. 2 and 3 in Execution Case No. 55/2000) applied for sanction of loan amounting to Rs.77,100/- for purchasing a chassis and Rs. 30,400/- for meeting expenses for bus body building, by Allahabad Bank (respondent nos. 5 and 6). The Bank sanctioned a loan of Rs. 1,07,500/- to the applicants which was withdrawn (Rs. 77,100/- on 06.10.1976 and Rs. 30,400/- on 11.11.1976) on execution of two Demand Promissory Notes and a letter of hypothecation of the vehicle was made. Thereafter, upon the resignation of Nawal Kishore Prasad (respondent no. 10) in 1977, the petitioner applied for membership of M/s Kariawan Shikshit Berojagar Motor Pariwahan Sahkari Samiti Unlimited (respondent no. 7). On default in payment of the loan by the borrowers, the vehicle came to be seized on 22.11.1977 with the assistance of the petitioner on the assurance of the Bank that he would be recognized as a member of the Society. It is alleged that the bank obtained the petitioner's signature on the bank guarantee and as such, it has proceeded against the petitioner for recovery of the loan by instituting Money Suit No. 21 of 1981 against the petitioner (defendant no. 9). During the pendency of the said Money Suit, Naurangi Mahto, father of the petitioner (defendant nos. 8 and 10 in the said Money Suit) died on 01.03.1981 but the suit continued without substitution and a decree was passed on 22.06.1987 in favour of the plaintiff-Allahabad Bank. Subsequently, Suresh Prasad Singh (defendant no. 3 in the said Money Suit) who was the Secretary of the Society resigned as such and joined Government service. Upon his death on 14.08.1998, his son Rajiv Ranjan Singh was appointed in service on compassionate ground. The execution case was filed for recovery on 10.10.2000 without filing certified copy of the judgment and decree passed in the said Money Suit which was later on waived. It is further stated that the Bank filed Execution Case No. 55 of 2000 on 10.10.2000 and a certificate for recovery was prepared by the Debts Recovery Tribunal on 31.01.2001 for execution of the decree. Thereafter, on 25.08.2001, Saryoo Sah (defendant no. 2 in the said Money Suit) also died.

(3.) Learned counsel for the petitioner has challenged the validity of the recovery proceeding on three grounds, namely,