La-vision Vs. Union of India (Uoi) and ors. - Court Judgment

Excerpt:
bihar and orissa public demands recovery act, 1914 - sections 9 and 7, item no. 15 of schedule--certificate proceedings--petition to set it aside the ground of limitation and to pay 50% of the admitted amount--last chance granted to the certificate debtor for taking steps to pay the dues of the certificate--petitioner never questioned the maintainability of the certificate proceedings--petitioner cannot be permitted to defeat the payment of just dues of the respondent-bank by questioning the jurisdiction of the certificate officer--held, discretierary jurisdiction of the high court cannot be exercised in favour of the petitioner--however, as the huge amount was directed to be paid by the petitioner, the respondent-bank being a 'state' within the meaning of article 12 of the constitution of india may agree to the offer of the certificate debtor to pay such amount in instalments. - - it is further well-known that in view of the aforementioned conduct of the petitioner, we may refuse to our discretionary jurisdiction under article 226 of the constitution of india. 30. further it is now well-known that the court may not always insist on technicality. s.b. sinha and n. roy, jj.1. in this writ application, the petitioner has prayed for issuance of an appropriate writ for setting aside the certificate proceedings being certificate case no. 30 (ub1) of 1992-93 as also the order dated 10-6-1993 whereby and whereunder the objections filed by the petitioner under section 9 of the bihar and orissa public demands recovery act, 1914 (hereafter referred to as the said act) was rejected the ground of being barred by limitation and the direction had been issued to pay 50% of admitted amount.2. the fact of the matter is not in dispute.3. the petitioner obtained loan from the respondent-bank-requistions. were sent by the said bank before the certificate officer in form no. 2 on 23-12-1992 against the petitioner and its partners wherein it was stated as follows:as the certificate dr. have neither fulfilled to keep agreed terms and conditions nor cleared the availed dues financial facilities, inspite written commitment, as such the requisition amount is recoverable under the process of, bihar and orissa public demand recovery act, 1914.4. according to the petitioner initiation of the certificate proceeding was wholly illegal and without jurisdiction as alongwith the requisition no court-fee was paid.5. the petitioner filed an objection beyond the prescribed time. by an order dated 10-6-1993, the petitioner's objection was rejected only on the ground of non-filing of objection under section 9 within the statutory period of 30 days from the date of service of the notice under section 7 of the act and also due to alleged non-verification of the petitioner in accordance with law.6. the petitioner has contended that no certificate proceedings could have been initiated as against the petitioner by the bank.7. in this case a counter-affidavit has been filed on behalf of the respondent-bank wherein inter alia it has been contended that the petitioner had an alternative remeby by eav of appeal and revision against the impugned order.8. it was further contended that as the petitioner has admitted his liability, this writ application should not be entertained.9. mr. s.b. gadodia, the learned counsel appearing on behalf of the petitioner has brought to our notice several orders of this court for the purpose of showing that the question relating to the vires of item no. 15 of the schedule of the act in terms whereof a nationalised bank can recover its date by taking recourse to the provisions of bihar and orissa public demand recovery act.10. it has further been submitted that in many cases this court has passed an order that no coercive steps should be taken for realisation of the dues till the matter is decided by the supreme court.11. mr. m.y. eqbal, the learned counsel appearing on behalf of the respondent, however, has drawn our attention to the various applications filed by the petitioner as also the respondent-bank in the certificate proceeding.it appears that the certificate debtors has admitted the liability for a sum of rs. 35,17,284.16 and rs. 15,986.51 of bank charges which comes to rs. 35,33,270.67 only which it undertook to be repaid in 72 equal monthly instalments alongwith the interest at the rate of 12% per annum.12. the certificate holder thereafter filed a rejoinder to the said application inter alia stating that in view of the accounts submitted by it, it is entitled to realise the entire amount of rs. 74,18,823 inasmuch as the said amount is reflected in the account books maintained by the certificate holder and thus the same are admissible under the bankers book evidence act.13. it has further been submitted that the petitioner's objection denying a part of the liability was filed after 30 days and thus the same cannot be entertained. the said re-joinder is contained in annexure-b to the said counter affidavit. the certificate holder has further stated that after the notice was finally served upon the petitioner, some of them appeared and filed a petition which was neither signed nor properly vertified in accordance with law. some of the petitioners admitted their liabilities before the certificate officer and agreed to pay the amount due to the respondent-bank. it has further been contended that after march, 1993, the certificate proceeding was being adjourned from time to time and the objections under section 9 of the certificate debtor was rejected by an order dated 10-6-1993 holding that the petitioner liable for payment of the certificate amount. on 10-7-1993 and again on 26-7-1993 the petitioners filed applications whereby they sought for time to comply with the final order dated 10-6-1993 agreed by the certificate officer. the said application is contained in annexure-c to the connteraffidavit.in the said application it was stated thus:that the petitioner had prayed for adjournment of two months on 2-7-1993.that due to some changed circumstances and the illness of the partners, the petitioner is unable to comply the court order of dated 10-6-1993.that the petitioners are in unavoidable foreseen hence prays for time.it, is, therefore., prayed that your honour may be pleased to allow 45 duys time to comply the order of the court for the ends of justice:andfor this they shall ever pray.14. thereafter, it appears, the petitioner deposited only a sum of rs. 61,699.86 on various dates between 16-5-1993 to 5-8-1993 and filed an application calling for the balance amount.15. mr. s.b. gadodia, the learned counsel appearing on behalf of the petitioner submitted that it is not correct to contend that the petitioners had admitted their liabilities.16. the learned counsel in this connection has drawn our attention to paragraph 11 of the writ application.17. the order-sheets dated 15-3-1992 reads thus :-appellant dawara hazjri dakil dane par sara samye hetu awedan dakhil, dane par bar-bar time petition dekar apane diyto se mukrana chates bai. pichili titihi ko denepar ke adiwakta ne mere samakchh sysytha ki unka admitted liability lagbhag 40-45 lakh ke karib hai. dane par apane admitted liability ka karib 20 lakh rupya jama kare. baki par to show-cause dakila kare.18. it is also clear from the different orders passed by the learned certificate officer that the petitioners have admitted their liabilities. it may be pointed out to the learned counsel that in view of the fact that the statements made in para 11 of the writ petition have not been veritied nor any certificate of the counsel was appended to the writ petition, the statements cannot be accepted by the court.19. it now appears from the records that the petitioner without obtaining leave of the court has filed a supplementary affidavit, a copy whereof was served upon the counsel of the respondent on 4-9-1993 at 3.45 p.m. purporting to verify the statements made in paragraph 11 of the writ application as true to the knowledge of the deponent.it was further submitted that the deponent was present on 7-2-1993 and 15-3-1993 and the facts recorded in the order-sheet are not correct. the statements made in the supplementary affidavit, in our opinion, cannot be accepted as the same had not only been filed after the judgment was reserved but therein some statements had been made which was not made earlier in the writ petition. further even before tiling the said affidavit, no leave of the court was obtained.20. further the said statements are not in consonance with the statements made in the application filed by the petitioner before the certificate officer, noticed hereinbefore.21. it is true that the supreme court of india have admitted several writ application and several writ application have been transferred the court as also the calcutta high court for the purpose of consideration as to whether the dues of the bank can be realised in terms of the provisions of the bihar and orissa public demand recovery act, it is also true that in some of the writ applications interim orders have been passed.22. but in this case, in our opinion, the conduct of the petitioner is such that does not entitle him to invoke the discretionary jurisdiction of the court. as noticed hereinbefore, the petitioner has admitted its liability at the first instance to the extenr of rs. 36 lacs and odd and agreed to pay the same in 72 equal instalments together with interest at the rate of 12% per annum. it further appears that when its objection under section 9 of the act was dismissed, may be on the ground of technicality, it had sought for two adjournments to pay the dues of the certificate holder. from the order-sheets of the certificate proceeding it appears that the application for time was allowed and the last chance was granted to the certificate debtor for taking steps to pay the dues of the certificate on 21-3-1993.23. again on 23-4-1993 an application for time was filed. on 3-5-1993 the case was not taken up for hearing. the matter was heard on 8-5-1993 and 28-5-1993. on 10-6-1993, the certificate officer passed a detailed order rejecting the application passed by the certificate officer and directed them to pay 50% of the certificated amount till 3-7-1993 and rest of the amount should be deposited in 10th monthly instalment from august, 1993, failing which body warrant and distress warrant should be issued.24. the petitioner filed this writ petition on 8-7-1993. however, as noticed hereinbefore, even during pendency of this writ petition it had deposited a sum of rs. 61,691.86 on various dates between 16-5-1993 to 5-8-1993. it further appears from annexure-d to the counter-affidavit that a time petition was filed by the petitioner to pay the certificated dues. further one of the petitioners filed a petition before the certificate officer for settlement of lawful demands of the amount by the certificate holder (annexure-d). by reason of the said application, two months further time was sought for, for hearing.25. as indicated hereinbefore, on 26-7-1993 the petitioner filed an application and sought for 45 days time to comply with the final order passed by the certificate officer on 10-3-1993.26. in this situation, in our opinion, the discretionary jurisdiction of this court should not be exercised in favour of the petitioner.27. it further appears that the petitioner had never questioned the maintainability of the certificates proceedings inter alia on the ground that item no. 15 of the schedule of the said act is unconstitutional.it is further well-known that in view of the aforementioned conduct of the petitioner, we may refuse to our discretionary jurisdiction under article 226 of the constitution of india.28. reference in this connection may be made to 1993 (1) pljr 505.it may further be noticed that in a case of this nature, it will not be prudent to permit the petitioner to defeat payment of just dues of the respondent-bank by questioning the jurisdiction of the certificate officer as such a question was not raised before the authority concerned at all in the first instance.29. reference in this connection may be made to sohan singh v. the general manager, ordinance factory and ors. : air1981sc1862 .however, we may hasten to add that we do not intend to lay down a law that this court should not exercise its jurisdiction in a given case although the entire proceedings may be held to be wholly illegal.30. further it is now well-known that the court may not always insist on technicality.reference in this connection may be made to jogendra lal saha v. the state of bihar and ors.1991 (2) pljr 46 (sc).31. for the reasons aforementioned, this application is dismissed. however in view of the fact that by reason of the order dated 10-6-1993 a huge amount has been directed to be paid as against the petitioner ; we hope that the respondent-bank being a 'state' within the meaning of article 12 of the constitution of india shall agree to the offer of the certificate debtor to pay the amount in question in instalments if a reasonable offer in this regard is made by the petitioner.however, we are not expressing any opinion, in this regard. for the reasons aforementioned, this application is dismissed but without any order as to costs.

Judgment:

S.B. Sinha and N. Roy, JJ.

1. In this writ application, the petitioner has prayed for issuance of an appropriate writ for setting aside the certificate proceedings being Certificate case No. 30 (UB1) of 1992-93 as also the order dated 10-6-1993 whereby and whereunder the objections filed by the petitioner under Section 9 of the Bihar and Orissa Public Demands Recovery Act, 1914 (hereafter referred to as the said Act) was rejected the ground of being barred by limitation and the direction had been issued to pay 50% of admitted amount.

2. The fact of the matter is not in dispute.

3. The petitioner obtained loan from the respondent-Bank-Requistions. were sent by the said Bank before the Certificate Officer in Form No. 2 on 23-12-1992 against the petitioner and its partners wherein it was stated as follows:

As the Certificate Dr. have neither fulfilled to keep agreed terms and conditions nor cleared the availed dues financial facilities, inspite written commitment, as such the requisition amount is recoverable under the process of, Bihar and Orissa Public Demand Recovery Act, 1914.

4. According to the petitioner initiation of the certificate proceeding was wholly illegal and without jurisdiction as alongwith the requisition no court-fee was paid.

5. The petitioner filed an objection beyond the prescribed time. By an order dated 10-6-1993, the petitioner's objection was rejected only on the ground of non-filing of objection under Section 9 within the statutory period of 30 days from the date of service of the notice under Section 7 of the Act and also due to alleged non-verification of the petitioner in accordance with law.

6. The petitioner has contended that no certificate proceedings could have been initiated as against the petitioner by the Bank.

7. In this case a counter-affidavit has been filed on behalf of the respondent-Bank wherein inter alia it has been contended that the petitioner had an alternative remeby by eav of appeal and revision against the impugned order.

8. It was further contended that as the petitioner has admitted his liability, this writ application should not be entertained.

9. Mr. S.B. Gadodia, the learned Counsel appearing on behalf of the petitioner has brought to our notice several orders of this Court for the purpose of showing that the question relating to the vires of Item No. 15 of the Schedule of the Act in terms whereof a Nationalised Bank can recover its date by taking recourse to the provisions of Bihar and Orissa Public Demand Recovery Act.

10. It has further been submitted that in many cases this Court has passed an order that no coercive steps should be taken for realisation of the dues till the matter is decided by the Supreme Court.

11. Mr. M.Y. Eqbal, the learned Counsel appearing on behalf of the respondent, however, has drawn our attention to the various applications filed by the petitioner as also the Respondent-Bank in the certificate proceeding.

It appears that the certificate Debtors has admitted the liability for a sum of Rs. 35,17,284.16 and Rs. 15,986.51 of Bank charges which comes to Rs. 35,33,270.67 only which it undertook to be repaid in 72 equal monthly instalments alongwith the interest at the rate of 12% per annum.

12. The Certificate holder thereafter filed a rejoinder to the said application inter alia stating that in view of the accounts submitted by it, it is entitled to realise the entire amount of Rs. 74,18,823 inasmuch as the said amount is reflected in the account books maintained by the Certificate Holder and thus the same are admissible under the Bankers Book Evidence Act.

13. It has further been submitted that the petitioner's objection denying a part of the liability was filed after 30 days and thus the same cannot be entertained. The said re-joinder is contained in Annexure-B to the said counter affidavit. The Certificate Holder has further stated that after the notice was finally served upon the petitioner, some of them appeared and filed a petition which was neither signed nor properly vertified in accordance with law. Some of the petitioners admitted their liabilities before the Certificate Officer and agreed to pay the amount due to the respondent-Bank. It has further been contended that after March, 1993, the Certificate Proceeding was being adjourned from time to time and the objections under Section 9 of the Certificate Debtor was rejected by an order dated 10-6-1993 holding that the petitioner liable for payment of the certificate amount. On 10-7-1993 and again on 26-7-1993 the petitioners filed applications whereby they sought for time to comply with the final order dated 10-6-1993 agreed by the Certificate Officer. The said application is contained in Annexure-C to the connteraffidavit.

In the said application it was stated thus:

That the petitioner had prayed for adjournment of two months on 2-7-1993.

That due to some changed circumstances and the illness of the partners, the petitioner is unable to comply the court order of dated 10-6-1993.

That the petitioners are in unavoidable foreseen hence prays for time.

It, is, therefore., prayed that your honour may be pleased to allow 45 duys time to comply the order of the Court for the ends of justice:

AND

for this they shall ever pray.

14. Thereafter, it appears, the petitioner deposited only a sum of Rs. 61,699.86 on various dates between 16-5-1993 to 5-8-1993 and filed an application calling for the balance amount.

15. Mr. S.B. Gadodia, the learned Counsel appearing on behalf of the petitioner submitted that it is not correct to contend that the petitioners had admitted their liabilities.

16. The learned Counsel in this connection has drawn our attention to Paragraph 11 of the writ application.

17. The order-sheets dated 15-3-1992 reads thus :-

Appellant dawara hazjri dakil dane par sara samye hetu awedan dakhil, Dane par bar-bar time petition dekar apane diyto se mukrana chates bai. Pichili titihi ko denepar ke adiwakta ne mere samakchh sysytha ki unka admitted liability lagbhag 40-45 lakh ke karib hai. Dane par apane admitted liability ka karib 20 lakh rupya jama kare. Baki par to show-cause dakila kare.

18. It is also clear from the different orders passed by the learned Certificate Officer that the petitioners have admitted their liabilities. It may be pointed out to the learned Counsel that in view of the fact that the statements made in Para 11 of the writ petition have not been veritied nor any certificate of the counsel was appended to the writ petition, the statements cannot be accepted by the Court.

19. It now appears from the records that the petitioner without obtaining leave of the Court has filed a supplementary affidavit, a copy whereof was served upon the counsel of the respondent on 4-9-1993 at 3.45 p.m. purporting to verify the statements made in Paragraph 11 of the writ application as true to the knowledge of the deponent.

It was further submitted that the deponent was present on 7-2-1993 and 15-3-1993 and the facts recorded in the order-sheet are not correct. The statements made in the supplementary affidavit, in our opinion, cannot be accepted as the same had not only been filed after the judgment was reserved but therein some statements had been made which was not made earlier in the writ petition. Further even before tiling the said affidavit, no leave of the Court was obtained.

20. Further the said statements are not in consonance with the statements made in the application filed by the petitioner before the Certificate Officer, noticed hereinbefore.

21. It is true that the Supreme Court of India have admitted several writ application and several writ application have been transferred the Court as also the Calcutta High Court for the purpose of consideration as to whether the dues of the Bank can be realised in terms of the provisions of the Bihar and Orissa Public Demand Recovery Act, It is also true that in some of the writ applications interim orders have been passed.

22. But in this case, in our opinion, the conduct of the petitioner is such that does not entitle him to invoke the discretionary jurisdiction of the Court. As noticed Hereinbefore, the petitioner has admitted its liability at the first instance to the extenr of Rs. 36 lacs and odd and agreed to pay the same in 72 equal instalments together with interest at the rate of 12% per annum. It further appears that when its objection under Section 9 of the Act was dismissed, may be on the ground of technicality, it had sought for two adjournments to pay the dues of the Certificate Holder. From the order-sheets of the certificate proceeding it appears that the application for time was allowed and the last chance was granted to the Certificate Debtor for taking steps to pay the dues of the certificate on 21-3-1993.

23. Again on 23-4-1993 an application for time was filed. On 3-5-1993 the case was not taken up for hearing. The matter was heard on 8-5-1993 and 28-5-1993. On 10-6-1993, the Certificate Officer passed a detailed order rejecting the application passed by the Certificate Officer and directed them to pay 50% of the certificated amount till 3-7-1993 and rest of the amount should be deposited in 10th Monthly instalment from August, 1993, failing which Body Warrant and Distress Warrant should be issued.

24. The petitioner filed this writ petition on 8-7-1993. However, as noticed hereinbefore, even during pendency of this writ petition it had deposited a sum of Rs. 61,691.86 on various dates between 16-5-1993 to 5-8-1993. It further appears from Annexure-D to the counter-affidavit that a time petition was filed by the petitioner to pay the certificated dues. Further one of the petitioners filed a petition before the Certificate Officer for settlement of lawful demands of the amount by the certificate holder (Annexure-D). By reason of the said application, two months further time was sought for, for hearing.

25. As indicated hereinbefore, on 26-7-1993 the petitioner filed an application and sought for 45 days time to comply with the final order passed by the Certificate Officer on 10-3-1993.

26. In this situation, in our opinion, the discretionary jurisdiction of this Court should not be exercised in favour of the petitioner.

27. It further appears that the petitioner had never questioned the maintainability of the certificates proceedings inter alia on the ground that Item No. 15 of the Schedule of the said Act is unconstitutional.

It is further well-known that in view of the aforementioned conduct of the petitioner, we may refuse to our discretionary jurisdiction under Article 226 of the Constitution of India.

28. Reference in this connection may be made to 1993 (1) PLJR 505.

It may further be noticed that in a case of this nature, it will not be prudent to permit the petitioner to defeat payment of just dues of the respondent-Bank by questioning the jurisdiction of the Certificate Officer as such a question was not raised before the authority concerned at all in the first instance.

29. Reference in this connection may be made to Sohan Singh v. The General Manager, Ordinance Factory and Ors. : AIR1981SC1862 .

However, we may hasten to add that we do not intend to lay down a law that this Court should not exercise its jurisdiction in a given case although the entire proceedings may be held to be wholly illegal.

30. Further it is now well-known that the Court may not always insist on technicality.

Reference in this connection may be made to Jogendra Lal Saha v. The State of Bihar and Ors.1991 (2) PLJR 46 (SC).

31. For the reasons aforementioned, this application is dismissed. However in view of the fact that by reason of the order dated 10-6-1993 a huge amount has been directed to be paid as against the petitioner ; we hope that the respondent-Bank being a 'State' within the meaning of Article 12 of the Constitution of India shall agree to the offer of the certificate debtor to pay the amount in question in instalments if a reasonable offer in this regard is made by the petitioner.

However, we are not expressing any opinion, in this regard. For the reasons aforementioned, this application is dismissed but without any order as to costs.