# Bhola Nath and others v. State Bank of India , Branch Sirsa, Sirsa Bazar and others

- **Citation:** (2002) 1 ILRA 204
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-01-11
- **Case number:** Civil Misc. Writ Petition No. 585 of 2001
- **Bench:** G.P. Mathur, R.P. Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhola-nath-and-others-v-state-bank-of-india-branch-sirsa-sirsa-bazar-and-others-39794
- **Pages:** 4

## Headnote

Constitution of India, Article 226-Scope
and Limitations- Power of the Court-
discretionary one- if the barrower given
undertaking to deposit the amount for
stay of recovery proceeding - bound by
said condition- in case of default-court
declined to interfere-held- can not be
claimed as matter of right.

Held-para 6

Therefore, it is absolutely necessary that
such borrowers who have undertaken or
have been directed to deposit some
amount as a condition for staying the
recovery
proceedings
must
be
held
strictly bound by the said conditions and
in the event of non-compliance of the
conditions imposed, this Court will be
fully justified in declining to grant the
relief
under
Article
226
of
the
1All] Bhola Nath and others V. State Bank of India, Branch Sirsa and others
205
Constitution as the proceedings under
the said provision are discretionary in
nature and can not be claimed as matter
of right.
Case law discussed:
AIR 1988 Alld.-156 (DB)
2001 ALR-156 (FB)

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2002
204
to whether any case has been
registered
alleging
kidnapping/
abduction of the girl.

(iii) that the parents and in their absence
near relations of the girl shall be
noticed at the expense of the
petitioner to appear at the time of
medical examination. If it is reported
by the police that on the basis of a
complaint, FIR has been registered
under Section 363 & 366 I.P.C. or for
any other offence, the Medical
Officer shall refuse to examine the
girl and issue certificate of age.

8. The directions as aforesaid shall
be strictly followed by all the Medical
Officers of the State and any violation
there of may entail serious consequence.
The
Principal
Secretary
of
Heath
Department, Government of U.P. is
directed to communicate this Judgement
to the Chief Medical Officer /Chief
Medical Superintendents for compliance.

9. Coming to the present case, we
are of the considered opinion that the FIR
in case Crime no. 321 of 2001 P.S.
Sirsaganj,
District
Firozabad
under
Section 363 and 366 I.P.C. cannot be
quashed. It is however, provided that
arrest of the petitioners shall be stayed for
a period of six weeks form today within
which they shall produce Km. Sangeeta
before the Investigating Officer who shall
get her medically examined by way of
ossification test for ascertaining her age
besides recording her statement under
Section 161 Cr. P.C. On receipt of the
medical report, the investigating officer
will be free to proceed with the
investigation in the manner as provided
under law.

10. With the above observation and
direction, the writ petition stands finally
disposed of. Registry is directed to send a
copy of this judgement to Principal
Secretary,
Health
Department,
Government of U.P. for Compliance.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.01.2002

BEFORE
THE HON'BLE G.P. MATHUR, J.
THE HON'BLE R.P. MISHRA, J.

Civil Misc. Writ Petition No. 585 of 2001

Bhola Nath and others ...Petitioners
Versus
State Bank of India , Branch Sirsa, Sirsa
Bazar and others

 ...Respondents

Counsel for the Petitioners:
Sri R.N. Kesari

Counsel for the Respondents:
Sri A.K. Mishra
S.C.

Constitution of India, Article 226-Scope
and Limitations- Power of the Court-
discretionary one- if the barrower given
undertaking to deposit the amount for
stay of recovery proceeding - bound by
said condition- in case of default-court
declined to interfere-held- can not be
claimed as matter of right.

Held-para 6

Therefore, it is absolutely necessary that
such borrowers who have undertaken or
have been directed to deposit some
amount as a condition for staying the
recovery
proceedings
must
be
held
strictly bound by the said conditions and
in the event of non-compliance of the
conditions imposed, this Court will be
fully justified in declining to grant the
relief
under
Article
226
of
the
1All] Bhola Nath and others V. State Bank of India, Branch Sirsa and others
205
Constitution as the proceedings under
the said provision are discretionary in
nature and can not be claimed as matter
of right.
Case law discussed:
AIR 1988 Alld.-156 (DB)
2001 ALR-156 (FB)

(Delivered by Hon'ble G.P. Mathur, J.)

1. This writ petition under Article
226 of the Constitution has been filed for
quashing of the citation dated 29.12.2000
asking
the
petitioners
to
deposit
Rs.8,76,449/-.

2. The petitioners no. 1 to 4 are
partners of petitioner no. 5 which is a
registered partnership firm carrying on
business in Sirsa Bazar. Allahabad. The
firm opened a current account in the State
Bank of India. Branch Sirsa Bazar and
was granted a cash-credit facility with a
limit of Rs.6 Lakhs. An overdraft facility
was also provided by the bank. It appears
that the petitioners did not keep their
account in order and did not deposit the
dues of the bank. The bank accordingly
sent a certificate to the Collector to
recover the amount under U.P. Public
Moneys (Recovery of Dues) Act. 1972.
The
Collector
accordingly
initiated
proceedings to recover the amount as
arrears of land revenue and Tehshildar
Meja, thereafter issued a citation to the
petitioners asking them to deposit the
amount which has been impugned in the
present writ petition.

3. Sri R.N. Kesari, learned counsel
for the petitioners has submitted that the
provisions of U.P. Public Money s
(Recovery of Dues) Act. 1972 can not be
invoked to recover the dues of the bank.
He has placed reliance on a Full Bench
decision in Smt. Sharda Devi Versus State
of U.P. 2001 A.L.R. 156, wherein it has
been held that a banking company can
recover only such loan under U.P. Public
Moneys (Recovery of Dues Act 1972,
which has been advanced or paid under a
State Sponsored Scheme and not any
other type of loan. Learned counsel has
urged that since the petitioners had not
been
given
loan
under
any
State
Sponsored Scheme but had been given a
cash credit facility, the dues of the bank
cannot be recovered under the aforesaid
Act. There can be no quarrel with the
proposition of law urged by the learned
counsel for the petitioners. The petitioners
had not been given any loan by the State
Bank of India under any State Sponsored
Scheme but had been given a cash-credit
facility and, therefore, the provision of
U.P. Public Moneys (Recovery of Dues)
Act, 1972, cannot be availed of in order to
recover the dues of the bank. But the
question still remains whether in the facts
and circumstances of the case. The
petitioners are entitled to claim such a
relief in the present writ petition under
Article 226 of the Constitution.

4. This petition was heard for
admission by a Division Bench on
8.1.2001 when an interim order was
passed and the relevant portion thereof is
being reproduced below:

"Shri R.N. Kesari learned counsel for
the petitioner made a statement that the
petitioner made a statement that the
petitioners will deposit Rs.2,00,000/=
(Rupees two lacs) in Cash or by bank
draft with the Branch Manager, State
Bank of India. Sirsa. Allahabad and
another amount of Rs.2,00,000-(Rupees
two lacs) in Cash or by bank draft with
the said Branch Manager on or before
10.2.2001 and 10.3.2001 respectively,
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
206
whereafter
he
proposes
to
file
a
representation which may be decided by
the said Bank in accordance with law
and rules and the guidelines issued by the
Reserve Bank of India from time to time.

Shri A.K. Mishra, appearing for the
Bank has said that for the same relief the
petitioner had filed a suit which has also
been dismissed and appeal is pending. To
this Shri Kesari Stated that the suit was
only for interest amount and in case a
settlement is reached, the petitioner will
withdraw the appeal.

Relying upon the aforesaid statement
of Shri Kesari the recovery proceedings
are stayed till 10.2.2001 to enable the
petitioner to deposit rupees two lacs in
cash or by Bank draft with the branch
manager concerned of the said bank. In
the event of non-payment, the recovery
proceedings shall stand automatically
renewed on 11.2.2001 and Interim Stay
Application in writ petition shall be
deemed to be dismissed......"

5. When the case was taken up for
hearing learned counsel for the bank made
a statement that the petitioners did not
comply with the aforesaid order and did
not deposit any amount. The fact that the
petitioners did not deposit any amount has
also been admitted by Sri R.N. Kesari
learned counsel for the petitioners. When
the petitioners were threatened with the
recovery of Rs. 8,76,449/=, they filed the
writ petition. On the representation made
by the petitioners that they will deposit
some amount the recovery proceedings
were stayed on the condition that they
will deposit Rs.2 lakhs by 10.2.2001 and a
further sum of Rs. 2 lakhs by 10.3.2001.
By this process the petitioners were able
to prevent their arrest and also attachment
and sale of their properties. In M/S Lal
and Kumar Versus State of U.P. A.I.R.
1998 Alld. 156 a Division Bench
observed that overshooting a cash credit
limit and running an overdraft offends the
contract between the borrower and the
bank and thus the equity was against the
borrower and consequently, his writ
petition
challenging
the
recovery
proceedings was liable to be dismissed.
This decision was considered by the full
Bench in Smt. Sharda Devi Versus State
of U.P. (supra) and after noticing the
provisions of the Act. It was observed as
follows:

"......It is true that exercise of jurisdiction
under Article 226 of the Constitution is
discretionary in nature and the Court may
refuse to exercise discretion in favour of a
person if it finds that equity is against him
or it will result in miscarriage of justice.
While exercising its powers, the Court
must keep in mind the well-settled
principles on which such high prerogative
writs are issued. At the same time it must
be kept in mind that we are governed by
rule of law and all actions taken must be
supported by law. It cannot, therefore, be
laid down as a principle of universal
application
that
even
though
the
proceedings initiated for recovery of the
loan as arrears of land revenue are
without jurisdiction as the loan does not
fall within the purview of the Act yet the
Court would shut its eyes and decline to
exercise jurisdiction under Article 226 of
the Constitution only on the ground that
the borrower owes money to the bank. In
a proper case the court would not hesitate
to issue appropriate writ as the facts and
circumstances of the case may justify."

6. When the Tehsildar proceeds to
recover certain amount from a person as
1All] Udai Singh Bhanuvanshi V. Sri Kunj Behari Tewari
207
arrears of land revenue, he issues a
citation to him for his appearance and can
take steps to arrest and detain the person
in civil prison and also to attach and sell
other properties of the defaulter. It is
common knowledge that if the defaulter is
able to secure even a temporary or time
bound stay order against the recovery
proceedings, he is able to delay the
process of recovery for a long period as
the Tehsil authorities lay off their hands.
The Collector and the Tehsildar are busy
persons and have to perform many
government functions. They are overburdened with work and unless the
creditor is keenly pursuing the matter they
normally do not revive the recovery
proceedings immediately after expiry of
the time bound stay order. It is common
experience that some clever defaulters
who manage to get even a time bound
stay order by making a small deposit or
giving an undertaking to deposit the
amount are thus able to forestall the
recovery proceedings for a long time.
Therefore, it is absolutely necessary that
such borrowers who have undertaken or
have been directed to deposit some
amount as a condition for staying the
recovery proceedings must be held strictly
bound by the said conditions and in the
event of non-compliance of the conditions
imposed, this Court will be fully justified
in declining to grant the relief under
Article 226 of the Constitution as the
proceedings under the said provisions are
discretionary in nature and can not be
claimed as a matter of right.

7. In the present case, the admitted
position is that the conditions on which
the recovery proceedings were stayed by
this Court have not been complied with
by the petitioners. In fact, the petitioners
did not deposit any amount at all. It
appears that the petitioners made a false
statement on 8.1.2001 with the sole aim
of getting a stay order. Not only the
petitioners did not deposit the amount
within the time fixed by this Court but
they have not done so even later on or till
the time when the writ petition was taken
up for hearing. There is no explanation at
all why the petitioners did not comply
with the statements made by them. We
are, therefore, clearly of the opinion that
the conduct of the petitioners has been
very unfair and the statement regarding
making of deposit was made with the sole
aim of getting a stay order. Therefore, in
the facts and circumstances of the case,
this Court would be fully justified in not
granting any relief under Article 226 of
the
Constitution
in
favour
of
the
petitioners.

For the reasons mentioned above, the
writ petition is dismissed with costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD: 7.1.2002

BEFORE
THE HON'BLE A.K. YOG, J.

Civil Misc. Writ Petition No. 226 of 2002

Udai Singh Bhanuvanshi
...Petitioner
Versus
Sri Kunj Behari Tewari. ...Respondent

Counsel for the Petitioner:
Sri Raj Kumar Jain
Sri Rahul Jain

Counsel for the Respondent:

U.P. Urban Buildings (Regulation of
Lettings Rent and Eviction) Act 1972-
Section 21 (i) (b) Release application-
can only be made by the land lord-