\^ HIGH COURT OF CHHATTISGARH : BILASPUR Writ Petition (C) No,_5899_of2QQ7 AF^ 7-?'°^ Petitioner Jai Prakash Sahu Versus Respondent Bilaspur Jila Sahkari Bhoomi Vikas Bank Samiti, Janjgir Charapa ^ Post for pronouncement ofjudgment on 7r'' day of Seutember, 2009. Sd/- SatishK.Agnihotri Judge HIGH COURT OF CHHATTISGARH : BILASPUR Writ Petition (C) No. 5899 of 2007 Petitioner Jai Prakash Sahu, S/o Jhunau Sahu, aged about 53 years, Occupation Agriculturist, R/o Mulmula, P.0. Mulmula, Block Pamgarh, Tahsil Pamgarh, District Janjgir Champa (C.G.) Versus Respondent Bilaspur Jila Sahkari Bhoomi Vikas Bank Samiti, Janjgir Champa (C.G.) through its Branch Manager, Branch Pamgarh, Tehsil Pamgarh, District Janjgir Champa (C.G.) WRIT PETITION UNDER ARTICLE226_QFTHE CONSTn'UTIQN_QF_INDIA (SB: Hon'ble Shri Satish K. Agnihotri J.) Shri Gautani Bhaduri, Advocate for the petitioner. Shri Sushobhit Singh, Advo.cate on the authority of Shri Prabhakar Singh Chandel, Advocate for the respondent. J_U D_G_MEN_T .n (Passed on this 7ri> day of September, 2009) 1. Shri Gautam Bhaduri, learned counsel appearing for the petitioner would submit that the petitioner is an agriculturist having 17 acres and 19 decimal lands at village Mulmula, District Janjgir Champa. On 29.1.1996 the petitioner took a loan of Rs. 2,25,000/- from the respondent/Bank, for purchase of a tractor. After obtaining the loan, the petitioner purchased a tractor, bearing registration No. M.P. 26/E-3610 (Annexure P/l). The tractor was hypothecated to the bank. As the petitioner took an agricultural loan, the rate of interest should not carry more than 6 to 9 per cent per annum. Up to the year 2006 the petitioner has already paid total amount of Rs. 4,23,082/-. Even after payment of such a huge amount, according to the bank,an amount of Rs. 1,51,788/- ( Rs. 27,957/- towards interest + Rs. 1,23,831/- towards principal sum) was due against the petitioner, as on 7.6.2006. Vi «& He would further submit, it is apparent that the bank has charged compound interest on the agriculture loan instead of charging simple interest. In the year 2006 the petitioner sustained huge loss due to non-production of sufficient grains and therefore, he could not make the repayment of the instcdlment of the loan amount. Thereafter, the respondent-Bank resorted to recovery by a procedure not established under law by hiring agents of muscleman, thereby the possession of the vehicle was forcefully taken over by the Bank without affording an opportunity ofhearing. Thus, the Bank has adopted the illegal means fpr recovery of the dues of agricultural loan. The petitioner has filed this petition for the relief that the vehicle-tractor may be returned back to the petitioner, the respondent-Bank may be restrained to recover the amount of Rs. 1,51,788/-, the Bank rnay be directed to charge simple interest and the officers, responsible for adopting illegal means for recovery of dues, may be prosecuted. Shri Sushobhit Singh, learned counsel appearing for the respondent would submit that the petitioner applied for grant of loan on 16.1.1996 (Annexure R/l) for purchase of tractor, trolley and other agricultural instruments. After corapletion of necessary formalities the bank sanctioned long term loan for a period of 9 years ainounting to Rs. 2,25,000/- (Annexure R/2). The loan amount was to be repaid in^9 yearly equal installments of Rs. 51,525/- each, per year on 15th January. The interest chargeable on the principle sum was at the rate of 'l7Va°/o. In case the borrower fails to deposit the installment on or before the due 'date, penal interest on the difference sum was to be levied at the rate of 3%, in addition to the principle interest. The petitioner ^Y ,^~i f3s. f^ ^^ had swom an affidavit (Annexure R/3) that in case the petitioner fails to deposit installments the Bank may recover the balance amount by sale ofhis mortgaged property i.e. the tractor. Since 2001-2002 the petitioner became defaulter and did not pay the installment. Thus, on 3.12.2003 (Annexure R/7 and R/8) a registered notice was issued to the petitioner-borrower as well as his guarantor. Despite service of notice neither the petitioner nor his guarantor submitted any reply nor deposited installments. Thereafter, the recoveiy proceedings (Annexure R/9) were initiated by way of sale of the mortgaged property, under Section 23 and 26 ofthe Chhattisgarh Rajya Sahakari Krishi Aur Gramin Vikas Bank Maiyadit, Adhiniyam, 1999 (Annexure R/10). The petitioner has not impleaded the 'Zila Sahkari Krishi Aur Gramin Vikas Bank Maryadit, Janjgir Champa' as party respondent. The petitioner failed to reply to the notice issued to him, and as such, it cannot be held that the petitioner was not afforded an opportunity of hearing. I have heard learned counsel appearing for the parties and perused the pleadings and documents appended thereto. The respondent-Bank has filed note sheets and public notice for sale of vehicle along with the written submissions. A bare perusal of the documents filed by the respondent-Bank it is apparent that the notice was issued to thg. petitioner-borrower and guarantor on 3.12.2003 (Annexure R/7). The matter was forwarded to the higher authorities on 5.1.2004 and tractor was seized on 31.1.2007. The public auction of the property was held on 23.3,2007. The petitioner has filed this petition on 21.9.2007. <7^ 7. In support of his submission, leamed counsel appearing for the petitioner placed reliance on a decision of Hon'ble Suprenie Court in Manager, ICICI Bank Ltd. Vs. Prakash Kaur &0rs.1 wherein in para 12 and 18 it was held as under: "12. However, while make his submissions, Mr. Salve also conveyed the Bank's willingness to compromise the inatter by foregoing the interest which was payable on the outstanding dues which aruounted to Rs. 1,62,917/-. Mr. Salve also subinitted that in the event the writ petitioner had any doubts regarding the payments made by her and credited to her account, she could sit with the officers of the Bank along with her agent and verify the accounts and in the event it was found that any payment made by her had not been credited to her account, she would be entitled to receive credit for the same." "18. Before we part with this matter, we wish to make it clear that we do not appreciate the procedure adopted by the Bank in removing the vehicle froin the possession of the writ petitioner. The practice of hiring recoveiy agents, who are rausclemen, is deprecated and needs to be discouraged. The Bank should resort to procedure recognized by law to take possession of vehicles in cases where the borrower may have committed default in payment of the installments instead of taking resort to strong arm tactics. 8. In Prakash Kaur (supra) the facts were that Ms Prakash Kaur had taken a loan for purchase of truck. When she failed to deposit insta.llments only once, the truck was taken into possession by the agent of the I.C.I.C.I. Bank i.e. M/s Kartik Associates. In the case on hand the petitioner was served with a registered notice 3.12.2003. It is apparent that neither the petitioner subraitted reply to the notice not taken any other appropriate steps. It is not clear asto who had acted as agent of the bank and whether musclenian were engaged to take possession of the tractor. 9. The petition is silent about the details of alleged arm-twisting methods and taking away the tractor by illegal means. ' 2007 AIR SCW 1667 u' 10. Admittedly, the petitioner has not lodged any FIR or complaint before filing the writ petition. Thus, it cannot be held as proved that the illegal arin-twisting method was resorted to for taking possession of t.he hypothecated tractor of the petitioner. The petitioner has further in his affidavit/declaration dated 31.01.1996 (Annexure R/3) submitted to the Bank, has undertaken to make payment of the installnients regularly and promptly, and in default, the respondent-Bank would be at liberty to recover the amount from the mortgaged land. It is not the case of the petitioner that the petitioner has been depositins the installments regularly and further the grounds raised by the petitioner does not raise any other dispute except that the possession of the Tracfor was taken by illegal means. The respondent-Bank should have taken recourse to the procedure recognized by law. In the case on hand,. notice was issued to the petitioner as well as guararitor on 03.12.2003 (Annexure R/7). The petitioner has not chosen to tile any reply explaining his case or further making a request for more installnients or waiving off the interest ete., and as such, the petitioner is not entitled to any reliefs. However., on the request of learned counsel appearing for petitioner, liberty is reserved to the petitioner to make appropriate application, if so advised, before the respondent- Bank for above-stated reliefs, whatsoever. I am not expressing any opinion on the merits of the case asto whether the interest charged by the Bank was proper in accordance with law as liberty has been reserved to the petitioner to take up the matter with the respondent-Bank for settlement of the disputes. 11. For the reasons mentioned hereinabove, this Court is of the considered view that the respondent-Bank has afforded proper opportunity to the petitioner by issuing show-cause-notice and thereafter possession of the Tractor was taken over. 12. Accordingly, the petition is dismissed. No order asto costs. Sd/- Satish K. Agnihotri Judge Thait.ur/Amit C^'y'U-C-L^. ^Vl,^y^:^ ^. v IN THE HIGH COURT OFJUDICATURE OP CHHATTISGARH AT BILASPUR Writ Petition (C.) No^-'8?7/2007 PETITIONER: ,^v^- a^^^> ^y '"?1-"" Jai Prakash Sahu S/o Jhunau Sahu, Aged about 53 years, Occupation - Agriculturist R/o Mulmula,P.O.Mulmula, Block - Pamgarh, Tahsil - Pamgarh District - Janjgir-Champa (C.G.) VERSUS RESPONDENT Bilaspur Jila Sahkari Bhoomi Vikas Bank Samiti, Janjgir- Champa (C.G.) Through : Its Branch Manager, Branch Pamgarh, Tehsil - Pamgarh, District - Janjgir -Champa (C.G.) WRIT PETITION UN_D_ERJtRTICLE 226 OF THE CONSTITUTION OF INDIA.FQRJSSUANCE OF APPROPRIATE WRIT, ORDER OR DIRECTIONS