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ISHWARI SINGH versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Ishwari Singh v. State Of U.P. And Others - WRIT - A No. 16945 of 2006 [2006] RD-AH 10545 (28 May 2006)

 

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

Court No. 32

Special Appeal No. 216 of 2006

Har Pal Singh    Vs.  State of U.P. & others.

.....

Hon'ble S.Rafat Alam, J.

Hon'ble Sudhir Agarwal,J.

Heard Sri Ram Autar Varma, holding brief of Sri R.K.Tiwari, the learned counsel for the appellant.

This appeal under Rules of the Court arises against the judgment of Hon'ble Single Judge dated 20.2.2006 passed in Civil Misc. Writ Petition No. 10311 of 2006.

It appears that a sum of Rs. 53,234/- was due against the appellant. Consequently, a recovery proceeding was initiated. Aggrieved appellant preferred the aforesaid writ petition challenging the recovery proceeding. The Hon'ble single Judge by the impugned order dismissed the writ petition after recording a finding that the petitioner has not placed on record any proof in respect of payment of entire amount within the period of nine years towards the said loan which was to the tune of Rupees one lac. The Hon'ble Single Judge has further observed on the basis of own averment of the petitioner-appellant that the loan which was to be paid by 1996, has not been paid in time and therefore, he declined to exercise extraordinary equitable jurisdiction under Article 226 of the Constitution and accordingly the writ petition has been dismissed.

Learned counsel for the petitioner-appellant, however, relying on a Full Bench decision of this Court in the case of Sharda Devi vs. State of U.P. &others-, (2001) 3 UPLBEC 1941, and a judgment of Single Judge of this Court in the case of  Akhilesh Kumar Singh & others Vs. District Magistrate, Jaunpur and others, (2001) 2 UPLBEC 1042, contended that since the amount is very old, therefore, its recovery is barred by time and as such cannot be recovered as arrears of land revenue being barred by limitation.

The petitioner has neither disputed the fact that he has obtained loan of Rs. 100000/- from respondent No. 4 in August, 1987 for purchasing a tractor for agricultural purposes nor that the  entire loan has been paid. He has explained the circumstances on account whereto he could not pay instalment of the loan amount in time. According to the petitioner he has already paid an approximate amount of Rs.200000/- till January 2004, as stated in para 6 of the writ petition. His admission that he could not pay instalment in time is evident from para 10 of the writ petition which is reproduced as under:-

"That due to aforesaid unavoidable reason petitioner could not repay the instalment on time to the respondent bank."

In these circumstances when admittedly the petitioner was allowed extra time for payment of loan amount and as he himself admitted he paid some instalments upto January, 2004, it cannot be said that the limitation of recovery of loan amount would commence from 1996. From the facts stated in the writ petition it is apparent that last premium towards instalment of the loan amount paid by the petitioner is in January, 2004 and thereafter, he committed default. The recovery proceedings were initiated by the respondents thereafter resulting in citation dated 24.5.2005.

In the facts and circumstances of the case, the plea of the petitioner that the recovery proceedings are barred by limitation is devoid of any merit and is accordingly rejected.

Moreover a bare perusal of the writ petition would show that no such ground has been taken in the writ petition and on the other hand in para 15 of the writ petition the petitioner has expressed his willingness to repay the remaining amount which may be reproduced as under:

"That the petitioner has already repaid the approximate amount of Rs.200000/- and will ready to pay the remaining amount in 4 easy instalments quarterly in one year."

In these facts and circumstances of the case, in our considered view, the decisions cited above by the petitioner appellant are of no help to him and do not advance his case further.

In Bareilly Development Authority Vs. Vrinda Gujarati and others- AIR 2004 SC 1749,  the Apex Court held as under:-

"Once the respondents owe money to the appellant, it is fully in the competence of the Authority to recover the same. The parties to this action are bound by the terms of the contract."....(Para 16)

Again considering the scope of interference by High Court under Article 226 of the Constitution of India in the matter of recovery of dues by the financial institution, the Apex Court in the case of Orissa State Financial Corporation & others vs. Umesh Chandra Dani- (2001) 10 SCC 522, observed as under:-

"In a number of cases this Court has laid down that the powers of the High Court under Article 226 of the Constitution of India in the matter of recovery of the dues by the State Financial Corporation under the provisions of the Act are limited to considering whether there is any statutory violation on the part of the State Financial Corporation or whether the Financial Corporation has not acted fairly and reasonably. 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)

Besides, this Court in exercise of equitable extra ordinary jurisdiction under Article 226 of the Constitution of India is not bound to interfere if no equity lies in favour of the petitioner or if the Court finds that any interference may result in miscarriage of justice to other side. The relief under Article 226 is discretionary in nature.

There is no equity in favour of the defaulting party which may justify interference by the Court in exercise of its equitable extra ordinary jurisdiction under Article 226 of the Constitution to assist it in not repaying its debts. The objective flowing from the equity is to promote honesty and not to frustrate the legitimate rights of the financial institution which has taken steps for recovery of the amount which it had advanced towards loan to the defaulting party. The person who seeks equity must do equity.

The Apex Court in the case of Champalal Binani Vs. CIT AIR 1970 SC 645, held that issuance of writ of certiorari is a discretionary remedy. In the case of S.D.S.Shipping Pvt. Ltd. Vs. Joy Container Services Co. Pvt.Ltd. 2003 (4) Supreme 44, it was held that the High Court in exercise of extra ordinary jurisdiction under Article 226 of Constitution of India may not strike down an illegal order although it would be lawful to do so and the Court may refuse to extend the benefit of a discretionary relief to the petitioner. The said view has been reiterated by the Apex Court in State of Punjab & others Vs. Savinderjit Kaur-(2004) SCC 58 and Chandra Singh vs. State of Rajasthan-AIR 2003 SCC 2889.

Considering the case in hand and in view of the admitted facts of this case, we are clearly of the view that the petitioner having obtained loan of Rs. 100000 in 1987 which was repayable by 1996 and having defaulted in payment of instalments inspite of the extended period allowed by the bank for repayment of the loan,  compelling respondent No.4 to take coercive measure for recovery of the outstanding is not entitled for any equitable relief from this Court. It cannot be said that any equity lies in favour of the appellant warranting any interference from this Court. We also find that since the equity is against the petitioner appellant, any interference by this Court would result in miscarriage of justice. Accordingly we are of the view that Hon'ble the Single Judge has not erred in dismissing the writ petition by refusing to grant any indulgence in the discretionary jurisdiction under Article 226 of the Constitution and the facts and circumstances of the present case.  

In the result, the Special appeal being devoid of merit is accordingly dismissed.

Dt:8.3.2006

Zh/216


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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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