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MAN KUNWAR versus STATE OF U.P.& OTHERS

High Court of Judicature at Allahabad

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Man Kunwar v. State Of U.P.& Others - WRIT - C No. 76739 of 2005 [2005] RD-AH 7754 (19 December 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Hon'ble S.K. Singh, J.

Heard learned counsel for the petitioner, learned counsel who appears for the Bank/Samiti and learned Standing Counsel. Challenge in this petition is recovery proceeding.

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. Petitioner has taken loan of Rs. 26,400/-  out of which he has paid substantial amount. According to the petitioner he could not pay the instalment 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. 79,804/- plus other charges  is sought to be recovered by petitioner's arrest and auction of agricultural land which is the only source of livelihood of the petitioner and his family members. 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.

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 following directions:

i) Petitioner may deposit the entire amount sought to be recovered directly in concerned Bank/Samiti in three equal  instalments  In calculating the arrears the amount (if any) already paid will be adjusted.

ii) The first instalment may be deposited by 28th February, 2006,  second instalment by 31st May, 2006 and  third by 31st August, 2006. These deposits may be made before the branch of the Bank/Samiti from where the loan was taken. In case instalments are deposited in the Bank/Samiti then the recovery charges will not be recovered from the petitioner.

iii) During  period of deposit  the recovery proceedings will be kept in abeyance. In case petitioner defaults in depositing any of the instalments within the above stipulated time, 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.

iv) Petitioner may file an application for supply of statement of  account along with duly stamped self addressed envelope. In case any such application is filed, the concerned branch of the Bank/Samiti will give the same to the petitioner after deposit of first instalment within fifteen days.

v) 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.

vi) 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.

vii) Property (agricultural land/tractor) belonging to the petitioner ,if attached will be released by the concerned Tahsil authority (unless it has been auctioned) after deposit of first instalment.

viii) 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.

With the aforesaid writ petition stands disposed of.

19.12.2005

SKS

76739/2005

Three Instalments


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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