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RAJENDRA KASNA & OTHERS versus STATE OF U.P. THRU' FINANCE SECY. & OTHERS

High Court of Judicature at Allahabad

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Rajendra Kasna & Others v. State Of U.P. Thru' Finance Secy. & Others - WRIT - C No. 56034 of 2003 [2007] RD-AH 2879 (21 February 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

(Court No. 35)

Civil Misc.  Writ Petition No. 56034 of 2003

Rajendra  Kasna & others Vs. State of U.P. & others.

Hon'ble R.P. Misra, J.

Hon'ble Sudhir Agarwal, J.

The petitioner, having a Current Account with the Ghaziabad Urban Cooperative Bank Ltd. Ghaziabad the respondent no. 4, was allowed an overdraft  of Rs. 91,81,017/- and despite repeated reminders and notices issued by the respondent no. 4, he did not pay the said outstanding amount. Ultimately the amount swelled to Rs. 1,09,07,129/- (alongwith interest) and  the respondent no. 4 had to issue a recovery certificate under Section 95-A read with Section 34 of U.P. Co-operative Societies Act, 1965 (hereinafter referred to as '1965 Act').The petitioner has approached this Court alleging that the amount was not paid to him pursuant to any State Sponsored Scheme and therefore, the recovery of the same as arrears of land revenue is wholly without jurisdiction. The reliance has been placed on a Full Bench decision of this Court in Sharda Devi Vs. State of U.P. & others (2001) 3 UPLBEC 1941. Learned counsel for the petitioner submitted that the aforesaid amount was paid to the petitioner under Cash-Credit facility and therefore, recovery of the same as arrears of land revenue is wholly without jurisdiction.

Having heard learned counsel for the petitioner, we do not find any force in the aforesaid submissions. It is admitted to the petitioner that he was having a Current Account with the Ghaziabad Urban Cooperative Bank Ltd. Ghaziabad, the respondent No. 4. A perusal of Annexure-1 to the  writ petition, which is a notice dated 15.5.2003 issued by the respondent no. 4, indicates and is also admitted to the petitioner that the aforesaid amount was paid to him as overdraft against the aforesaid current account and not pursuant to any Cash-Credit facility. The petitioner has made a bare averment in para 4 of the  writ petition that the said payment was made to him as Cash-Credit facility but he has not placed anything on record to show that the said facility was  granted to him and if so, what was the extent of the said facility. Moreover, Annexure-1 to the  writ petition, makes it very clear that the aforesaid amount was received by the petitioner as overdraft against his current account. It is also admitted to the petitioner that he has received the aforesaid amount and the same has not been repaid by him to the Bank. Learned Counsel for the petitioner has also not shown any inclination for payment of the aforesaid amount. His only objection is that since the aforesaid amount was not given pursuant to any State Sponsored Scheme, the same could not have been recovered as arrears of land revenue and in support of his submission, he has placed reliance on the decision in Sharda Devi (supra). We have considered the aforesaid decision and find that in Sharda Devi (supra), the recovery sought to be made was under the provisions of U.P. Public Moneys (Recovery of Dues) Act, 1972 (hereinafter referred to as '1972 Act') and in the present case, the recovery has been issued under section 95-A read with Section 34 of 1965 Act, therefore, the law laid down by the Full Bench in Sharda Devi (supra) has no application to the facts of the case in hand.  

A society referred to as Cooperative Society under section 34 of 1965 Act, may recover its dues by getting recovery certificate issued under section 95-A of 1965 Act, therefore, we don't find any fault in the recovery certificate issued against the petitioner. Moreover, when the outstanding dues are admitted by the petitioner and he has not shown any inclination for payment thereof, this Court under Article 226 of the Constitution of India, while exercising equity jurisdiction is justified in refusing to interfere in such a matter. While exercising equitable extra-ordinary jurisdiction under Article 226 of the Constitution of India, this Court is not bound to interfere, if no equity lies in favour of the petitioner or the Court finds that any interference on its part will result in miscarriage of justice to the other side. The relief is discretionary in nature. There is no equity in favour of defaulting party, which may justify interference by this Court in exercise of its equitable jurisdiction, to assist him in not repaying its debt. The objective flowing from the equity is to promote honesty and not to frustrate the legitimate right of the financial institution, which has taken steps for recovery of the amount advanced to the defaulting party. A person who seeks equity must do equity. Even where the  petitioner has  got a  case but this Court finds that equity is against him or that any interference by it may result in miscarriage of justice, the Court in such a case, may decline to exercise its discretionary power in favour of such petitioner. In Orissa State Financial Corporation and others. Vs. Umesh Chandra Dani. (2001 (10) S.C.C. 522), the Apex Court observed "The power under Article 226 is not to be invoked just to enable the person who has received loan facilities to thwart the recovery proceedings." (para 4). Similarly, in Bareilly Development Authority Vs. Vrinda Gujarati and others (A.I.R. 2004 S.C. 1749), It was held "Once the respondents owe money to the appellant, it is fully in the competence of the authority to recover the same." (Para 16)

In view of the aforesaid facts and circumstances of this case, in our view, it is not a fit case warranting any interference under Article 226 of the Constitution and therefore, the  writ petition is dismissed.

Dated: 21.2.2007

Kst/-


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