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Durjua & Another v. State Of U.P. & Others - WRIT - C No. 5979 of 2006  RD-AH 2337 (31 January 2006)
Hon. S. K. Singh, J.
Heard learned counsel for the petitioner and learned counsel who appears for the respondent bank.
The 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. According to the petitioner he has taken loan in the year 2003 to the tune of Rs. 2,35,000/- and by now he has deposited substantial amount but thereafter he could not pay the amount on account of unavoidable circumstances as stated in the writ petition due to which small amount can be said to be in default by now, but entire payable amount up to the period of last instalment, which is huge one to the tune of Rs. 2,37,178/- plus interest is sought to be recovered by petitioner's arrest and auction of agricultural land/tractor which is the only source of livelihood of the petitioner and his family members. The loan is to be paid by 2012. Submission is that if reasonable time is allowed to pay the amount sought to be recovered, petitioner may be able to pay the same and irreparable injury on account of arrest and auction of property may be avoided.
To the aforesaid, learned counsel appearing for Bank/Samiti 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 riggers of coercive process i.e. arrest, auction of the properties and at the same time 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 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/Samiti will also get its amount with full interest.
In view of aforesaid keeping in mind the bonafide on the part of petitioner and inclination of the bank not to cause irreparable injury to the petitioner's interest and with an intention that respondent bank is to get the entire amount per bank schedule this petition is being disposed of by giving following directions:-
1. The petitioner may deposit entire amount payable by him up to the period of December, 2005 within a period of one month from today directly with the respondent bank. Property Agricultural land/tractor) belonging to the petitioner, if attached will be released by the concerned Tehsil authority (Unless it has been auctioned) after deposit of the aforesaid amount.
2. If the aforesaid amount is deposited as indicated above then remaining amount as per bank schedule will be deposited by the petitioner as and when they become due, directly in the respondent bank.
3. It is made clear that if the amount is deposited in the aforesaid manner respondent will not proceed to recover the amount by taking any coercive process and the respondent bank will also not recover any recovery charges from the petitioner.
4. In the event of default in depositing any instalment in future, then interim protection given by this Court shall cease to operate and it will be open for the respondent bank to recover the amount by taking any coercive process to which petitioner states not to object.
5. If any fact given by the petitioner on the basis of which this order is being passed is found to be false by the respondent bank, it will be open for the bank officials to move appropriate application for recall/modification of the order.
With the aforesaid directions, writ petition stands disposed of.
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