# Gupta v. State of Jharkhand (Supra)

- **Citation:** (2013) 1 ILRA 252
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-01-17
- **Case number:** Civil Misc. Writ Petition No. 34193 of 1999
- **Bench:** B. Amit Sthalekar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gupta-v-state-of-jharkhand-supra-42461
- **Pages:** 5

## Headnote

Constitution
of
India,
Article
226payment of interest-petitioner took loan
for purchase of Tractor-on default-as per
direction
of
Court
deposited
entire
outstanding amount-but interest w.e.f.
08.09.1993 to 13.07.1999 remained unpaid-held-interest is merely assertion of
wealth on principle amount-court can
not interfere-petition dismissed.

Held: Para-7

Interest is only an accretion of wealth on
a principal amount and even if the
petitioner claimed that he has paid the
amount due against him as upto 1993 or
upto 1999, the statement of account
does not show the interest during that
period and it is only in the SCA-3 of the
supplementary counter affidavit dated
20.6.2011 that the amount of interest
has been shown as Rs. 1,59,575/- for the
period from 8.9.1993 to 31.7.1999., This
amount has also not been deposited by
the petitioner and interest has continued
to pile up during the pendency of the
writ petition.
Case Law discussed:
JT 1999 (1) SC 145; Special Appeal no. 96 of
2000 (State Bank of India Vs. Ram Bahal and
others; (2010) 8 SCC 129

## Text

252 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
unless of course the FIR discloses specific
allegations which would persuade the
court to take cognizance of the offence
alleged against the relatives of the main
accused who are prima facie not found to
have indulged in physical and mental
torture of the complainant-wife. It is the
well settled principle laid down in cases
too numerous to mention, that if the FIR
did not disclose the commission of an
offence, the court would be justified in
quashing the proceedings preventing the
abuse
of
the
process
of
law.
Simultaneously, the courts are expected to
adopt a cautious approach in matters of
quashing
specially
in
cases
of
matrimonial dispute whether the FIR in
fact discloses commission of an offence by
the relatives of the principal accused or
the FIR prima facie discloses a case of
over-implication by involving the entire
family of the accused at the instance of
the complainant, who is out to settle her
scores arising out of the teething problem
or skirmish of domestic bickering while
settling down in her new matrimonial
surrounding.

9. Learned AGA has tried to justify
the summoning order passed by the
learned Magistrate but could not point out
any specific allegations against the
applicants.

10. Considered the submissions
made by learned counsel for the parties.
From the perusal of the complaint and the
statement of the complainant and it's
witnesses recorded u/s 200 and 202
Cr.P.C., it is apparent that only general
allegations have been levelled against the
applicants who married sisters and
brother-in-law of the husband Zubair
Ahmed.
The
applicants
are
living
separately from the husband of opposite
party no.2 which is evident from the
documents annexed with the present
application. The said fact also finds
mention in para no.5 and 6 of the affidavit
of the present application which is
unrebutted by the opposite party no.2 has
also not appeared before this court to
contest the matter in spite of the service of
notice of the application. The propositions
of law laid down in the case of Preeti
Gupta Vs. State of Jharkhand (Supra)
and Smt. Geeta Mehrotra Vs. State of
U.P (Supra) is fully applicable in the
instant case as the applicants who are
sister-in-laws and brother-in-law of the
complainant have been simply dragged in
the present case as they are family
members of the husband Zubair Ahmed
excepting bald allegations against them in
the complaint and in the statement of the
complainant and her witnesses there is
nothing on record which may show any
overt act on their part subjecting the
complainant to cruelty to satisfy unlawful
demands of dowry. Thus, it is a fit case
for exercise of inherent power of this
Court u/s 482 Cr.P.C for quashing of the
proceedings against the applicants.

11. In this view of the matter, so far
as applicants Khusnuma Khatoon, Ashif
Khan
and
Shabnam
Khatoon
is
concerned,
the
proceedings
of
the
Complaint Case No.1282 of 2011, u/s
498-A, 323, 506 IPC and 3/4 D.P.Act,
P.S. Haldharpur, district Mau pending
before the Judicial Magistrate, Mau is
hereby quashed and the petition is
allowed.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.01.2013

BEFORE
THE HON'BLE B. AMIT STHALEKAR, J.
1 All] Bishambhar Singh Vs. State of U.P. And Others
253
Civil Misc. Writ Petition No. 34193 of 1999

Bishambhar Singh

...Petitioner
Versus
State Of U.P. & Others ...Respondents

Counsel for the Petitioner:
Sri Ashok Kumar
Sri Anil Sharma
Sri Anil Srivastava,
Sri shutosh Shukla
Sri M.A. Khan

Counsel for the Respondents:
C.S.C.
Sri Amrish Sahai
Sri R.B. Sahai

Constitution
of
India,
Article
226payment of interest-petitioner took loan
for purchase of Tractor-on default-as per
direction
of
Court
deposited
entire
outstanding amount-but interest w.e.f.
08.09.1993 to 13.07.1999 remained unpaid-held-interest is merely assertion of
wealth on principle amount-court can
not interfere-petition dismissed.

Held: Para-7

Interest is only an accretion of wealth on
a principal amount and even if the
petitioner claimed that he has paid the
amount due against him as upto 1993 or
upto 1999, the statement of account
does not show the interest during that
period and it is only in the SCA-3 of the
supplementary counter affidavit dated
20.6.2011 that the amount of interest
has been shown as Rs. 1,59,575/- for the
period from 8.9.1993 to 31.7.1999., This
amount has also not been deposited by
the petitioner and interest has continued
to pile up during the pendency of the
writ petition.
Case Law discussed:
JT 1999 (1) SC 145; Special Appeal no. 96 of
2000 (State Bank of India Vs. Ram Bahal and
others; (2010) 8 SCC 129
(Delivered by Hon'ble B. Amit Sthalekar,J.)

1. This writ petition has been filed
by the petitioner seeking a direction in the
nature of mandamus to release the
attached property of the petitioner which
according to him has been auctioned for
Rs.1/- in favour of the State after
cancelling the auction proceedings.

2. The petitioner took a Tractor
Loan of Rs. 57,000/- and Rs. 9000/- for
other agricultural activities, a total sum of
Rs. 66,000/- from the Bank-respondent
no. 5 in the year 1986-87. From the
admitted facts in the writ petition he
deposited a sum of Rs. 10,000/- in the
year 1992-93 and thereafter a sum of
Rs.30,000/- on 9.1.1993. A recovery
certificate in Form 'F' was issued by the
Bank under Rule 27 of the Banking Rules
on 8.9.1993 for recovery of outstanding
demand of Rs.1,20,287/-. A notice was
issued to the petitioner by the Tehsildar
filed as Annexure-3 to the writ petition,
calling upon the petitioner to deposit a
sum of Rs.97,939 + interest and recovery
charges and fixed 27.3.1998 for the sale
of attached property. On 27.3.1998, the
petitioner deposited a sum of Rs.16,500/-
and thereafter requested that he is ready to
deposit a further sum of Rs.20,000/- but
the District Magistrate directed him to
deposit Rs.25,000/-. There is nothing in
the writ petition to show that this amount
of Rs.25,000/- was deposited by the
petitioner. Thereafter the matter was
referred by the District Magistrate to
S.D.M.-respondent no. 2 and thereafter
the property and other holdings of the
petitioner were attached in pursuance of
the recovery proceedings initiated earlier.
The property of the petitioner is also
stated to have been auctioned by the
respondent no. 4 Tehsildar on 28.4.1998.
Aggrieved
the
petitioner
filed
writ
petitoin no. 30069 of 1998, which was
254 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
disposed of by this Court by the order
dated 17.9.1998.

3. After this the petitioner is stated
to have been provided with the statement
of account by the respondent -bank which
he has filed as Annexure-7 to the writ
petition,
wherein
an
amount
of
Rs.27,415/- is stated to be outstanding
against the petitioner. According to the
petitioner this amount has also been
deposited by him on 19.8.1999 but
thereafter the statement of account which
was issued by the respondent-bank
mentioned that the interest from 8.9.1993
to 31.7.1999 of Rs.1,59,575/- was further
due against the petitioner.

4. I have heard Shri M.A. Khan,
learned counsel for the petitioner, Shri
Amrish Sahai, learned counsel appearing
for the respondent-bank and the learned
standing
counsel
for
the
other
respondents.

5. According to the learned counsel
for the petitioner, the petitioner initially
took a loan of Rs.66,000/- of which he has
deposited certain amounts, as already
noted above and when he approached this
court by means of writ petition no. 30069
of 1998 he was directed to deposit the
remaining
amount
in
trimonthly
instalments by this Court's order dated
17.9.1998.
According
to
him
the
statement of account provided by the bank
filed as Annexure-7 to the writ petition
shows
the
outstanding
amount
as
Rs.27,415/- which he has deposited on
19.8.1999. However the statement of
account filed as Annexure-7 to the writ
petition, does not show the interest due on
the loan amount. Thereafter another
statement of account was issued to the
petitioner which has been filed by the
respondent no. 5 through a supplementary
affidavit dated 20.6.2011 and Annexure
SCA-3 to the said affidavit is the
statement
of
account
showing
the
calculation of interest from 8.9.1993 to
31.7.1999 as Rs.1,59,575/-. This amount
has not been paid by the petitioner. This
statement
of
account
showing
an
outstanding amount of Rs.1,59,575/- has
also been filed as Annexure-1 to the
counter affidavit of respondent no. 5.

6. The admitted position emerging
from the arguments of learned counsel at
the bar is that the amount of Rs.1,59,575/-
has also not been deposited at the time of
filing of this writ petition. Thereafter the
respondent no. 5 has filed another
supplementary counter affidavit dated
11.7.2012 wherein a statement of account
has been filed wherein total outstanding
dues against the petitioner from 15.1.2000
upto 30.6.2012 has been shown as Rs.
10,24,049/-. At no stage of the pendency
of the writ petition has the petitioner
opted for payment of any outstanding
amount or for negotiating or arriving at a
settlement with the bank for payment of
any lesser amount.

7. Interest is only an accretion of
wealth on a principal amount and even if
the petitioner claimed that he has paid the
amount due against him as upto 1993 or
upto 1999, the statement of account does
not show the interest during that period
and it is only in the SCA-3 of the
supplementary counter affidavit dated
20.6.2011 that the amount of interest has
been shown as Rs. 1,59,575/- for the
period from 8.9.1993 to 31.7.1999., This
amount has also not been deposited by the
petitioner and interest has continued to
pile up during the pendency of the writ
petition.
1 All] Bishambhar Singh Vs. State of U.P. And Others
255

8. The Supreme Court in the case
reported in JT 1999 (1) SC 145 State
Bank of India Vs. Yasangi Venkateswara
Rao has held in paragraph 8 as under:

"We also find it difficult to agree
with the observation of the High Court
that normally when a security is offered in
the case of mortgage of property,
charging of compound interest would be
regarded as excessive. Entering into a
mortgage is a matter of contract between
the parties. If the parties agree that in
respect of the amount advanced against a
mortgage compound interest will be paid,
we fail to understand as to how the court
can possibly interfere and reduce the
amount of interest agreed to be paid on
the loan so taken. The mortgaging of a
property is with a view to secure the loan
and has no relation whatsoever with the
quantum of interest o be charged."

9. A Division Bench of this Court
while deciding the Special Appeal no. 96
of 2000 (State Bank of India Vs. Ram
Bahal and others) has, following the
judgment of the Supreme Court in the
case of Yasangi Venkateshwara Rao
(supra), held in paragraphs 5 and 6 that
interest is a matter of contract between the
parties and courts cannot interfere in the
same. Writ petitioners are bound to pay
interest in accordance with the agreement.
Paragraphs 5 and 6 of the said judgment
read as under:

"5. Having heard learned Counsel
for the parties, we are of the opinion,that
the direction given by the learned Single
Judge that the bank will charge simple
interest from the petitioners cannot be
legally sustained in view of Section 21-A
of the Banking Companies Regulation
Act. The writ petitioners are bound to pay
interest
in
accordance
with
the
agreement.

6. The Special Appeal is partly
allowed and the direction given by the
learned Single Judge to the effect that
simple interest will be charge from the
writ petitioner is set aside. The appellantState Bank of India will be entitled to
charge interest in accordance with the
agreement which was executed by the
parties at the time when the loan was
given to the writ petitioners."

10. The Supreme Court in the case
reported in (2010) 8 SCC 129 INdian
Bank Vs. Blue Jaggers Estates Limited
and others has held in paragraphs 22, 23,
24 and 25 as under:

"22. The argument of the learned
counsel for the respondents that the rate
of
interest
is
unconscionable,
expropriatory and contrary to law also
merits rejection because at no stage the
respondents had questioned the terms on
which loan and other financial facilities
were extended by the appellant. That
apart, after having enjoyed those facilities
for
more
than
one
decade,
the
respondents cannot turn around and raise
an argument based on the judgments of
this Court in Central Inland Water
Transport Corpn. V. Brojo Nath Ganguly
and Delhi Transport Corpn. V. D.T.C.
Mazdoor Congress.

23. It must be remembered that the
respondents were not in a position of
disadvantage vis-a-vis the appellant. If
they so wanter, the respondents could
have declined to avail loan and other
financial facilities made available by the
appellant. However, the fact of the matter
is that they had signed the agreement with
256 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
open eyes and agreed to abide by the
terms on which the loan, etc. was offered
by the appellant. Therefore, the doctrine
of unconscionable contract cannot be
invoked for frustrating the action initiated
by the appellant for recovery of its dues.

24. The respondents' accusation that
the appellant had not treated them fairly
sans credibility. It is they who had failed
to repay the outstanding dues. Not only
this, after signing two compromise deeds,
they failed to fulfil their commitment and
delayed the payment of Rs.63.5 lakhs by
almost three years. We have not felt
impressed by the submission of the
learned Senior Counsel appearing for the
respondents that the default
amount was too small to warrant
initiation of proceedings under Section 13
of the Act.

24. The Court cannot lose sight of
the fact that the bank is a trustee of public
funds. It cannot compromise the public
interest for benefiting private individuals.
Those who take loan and avail financial
facilities from the bank are duty-bound to
repay the amount strictly in accordance
with the terms of the contract. Any lapse
in such matters has to be viewed seriously
and the bank is not only entitled but dutybound to recover the amount by adopting
all
legally
permissible
methods.
Parliament enacted the Act because it was
found that legal mechanism available till
then was wholly insufficient for recovery
of the outstanding dues of banks and
financial institutions. Reference in this
connection deserves to be made to the
judgments
of
this
Court
in
Delhi
Transport Corpn. V. D.T.C. Mazdoor
Congress, Central Bank of India V. State
of Kerala and united Bank of India Vs.
Satyawati Tondon. "

10. In view of the facts of the
present case and weight of the judicial
pronouncements of the Supreme Court as
well as of this Court, the petition lacks
merit and is accordingly dismissed.

11. The petitioner may, if so
advised, seek settlement of his dues with
the respondent no. 5-Bank, in accordance
with law.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.02.2013

BEFORE
THE HON'BLE TARUN AGARWALA,J.

Civil Misc. Writ Petition No. 35086 of 1998

State
of
U.P.,
through
Executive
Engineer, Nichali Ganga Nahar, Phoolpur,
Kanpur

 ...Petitioner
Versus
The Labour Court (II), U.P. Kanpur and
another ...Respondents

Counsel for the Petitioner:
S.C.

Counsel for the Respondents:
Sri P.C. Jhingan, Sri Krishan Ji Khare
Sri G.C. Upadhyay, Sri R.K. Singh Rajput
S.C.

Constitution of India, Article 226- U.P.
Industrial Dispute Act award -directions
to reinstatement 50 % back wageschallenged on ground as per law laid
down
by
Apex
Court-Irrigation
department is not factory as such award
given
without
jurisdiction-held-in
absence of any evidence either before
Labor Court or before High Court Writ
Jurisdiction performed by department
legal or sovereign-in view of law laid
down by Supreme Court in R.M. Yellati
case-such
judgment
can
not
be
accepted-petition
dismissed.