IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1490 of 2007 (M/S) M/s Nice Consumer Services through its Proprietor, Bhupendra Kumar, S/O Shri Leeladhar, R/O 2, Arya Nagar, Jwalapur, Haridwar, District Haridwar. …… Petitioner. Versus Collector, Haridwar, District Haridwar and two others. … Respondents. Sri Ajay Veer Pundir, learned counsel for the petitioner. Sri K.P.Upadhyay, learned Additional Chief Standing Counsel for the State- respondents no. 1& 2. Sri Narendra Bali, Advocate, learned counsel for the respondent no.3-Bank. Date May 13, 2008. Hon’ble B.S.Verma, J. Heard Sri Ajay Veer Pundir, learned counsel for the petitioner, Sri K.P.Upadhyay, learned Additional Chief Standing Counsel for the State-respondent nos. 1 and 2 and Sri Narendra Bali, learned counsel for the respondent no.3-Bank. The writ petition is admitted. This writ petition has been filed for the following reliefs:- i) Issue a writ, order or direction in the nature of certiorari to quash the recovery certificate issued by the respondent no.2 contained in Annexure No.1 to the writ petition. ii) Issue a writ, order or direction in the nature of mandamus commanding/directing the respondents not to recover the amount of Rs. 5,75,305.00 plus recovery charges from the petitioner through recovery certificate issued by the respondent no.2. 2 iii) Issue any other relief, which this Hon’ble Court may deem fit and proper in the circumstances of the case be passed in favour of the petitioner. iv) Cost of the petition be awarded in favour of the petitioner. The main ground of challenge raised by the petitioner is that the petitioner has opened his current account (A/c No. 200511) with the respondent no.3-Bank in the year 2005 and after necessary formalities having been completed, the respondent bank has allowed Over Draft Limit facility to the tune of Rs. 5 lacs to the petitioner for business purpose. This facility of Over Draft of the petitioner was not granted under the State Sponsored Scheme. The respondent no.3 has issued a recovery citation (Annexure No.1) against the petitioner for recovery of Rs. 5,75,305/- plus other charges. I have perused the averments made in the writ petition as well as the counter affidavit filed on behalf of respondent no.3. In paragraph no.3 of the counter affidavit, the following averments have been made:- “3. That prior to the giving parawise reply of the contents of writ petition the deponent wants to state some relevant facts for the proper adjudication of present matter. The respondent Bank is a bank constituted and functioning under the Banking Companies (Acquisition and transfer of undertaking) Act, 1970. It is submitted by the deponent that at the time of sanction of loan in favour of petitioner an agreement was executed between petitioner and answering bank in which it was settled between parties that on the event of default if the bank decides for realization of security, the Bank’s Officials or any person authorized by the bank may at any time, enter the premises or place where “Said Goods” may be and take and retain possession of said 3 “goods” and seize and recover or remove “Said Goods” to any place or places as the bank shall think fit with or without notice to the borrower without intervention of any/forum. True and correct copy of the agreement is hereby marked and annexed as annexure no.CA-1 to this affidavit.” Learned counsel for the petitioner has contended that the respondents had no authority to recover the disputed amount of Over Draft Limit as arrears of land revenue. Learned counsel has relied upon the Apex Court verdict in the case of Iqbal Naseer Usmani Vs. Central Bank of India and others [2006 (24) LCD, 1424]. The Apex Court while dealing with the provisions of U.P. Public Moneys (Recovery of Dues) Act, 1972, in the case of Iqbal Naseer Usmani (supra) has inter alia held in paragraph no. 7 as under:- “We are afraid that while this may be very good sentiment, it cannot apply in the face of Section 3 of the Act for the reason that Section 3 does not envisage the provisions of the Act being utilized for recovery of every loan taken. Section 3(1)(b) permits this to be done only in respect of loans taken under a “State-Sponsored Scheme”, which expression has been defined in Section 2(g) of the Act. Since it is admitted that the loan taken by the applicant was not under or in relation of a “State-Sponsored Scheme” within the meaning of Section 2(g), whatever else it may be, it would not be recoverable by recourse to the machinery under Section 3 of the Act.” Learned counsel for the respondent no.3-Bank could not show that the Over Draft/loan was advanced to the petitioner was under the “State-Sponsored Scheme”, hence the over draft amount/loan cannot be recovered as arrears of land revenue. 4 In view of the discussion abovesaid, the writ petition deserves to be allowed. The impugned recovery citation (Annexure No.1) is liable to be quashed. The writ petition is allowed. The recovery citation (Annexure No.1 to the writ petition) is quashed. However, the respondent no3-Bank may proceed against the petitioner to recover the amount in question in accordance with law, by resorting to other modes of recovery available to the respondent-Bank. All pending applications stand disposed of. ( B.S.Verma, J. ) RCP 5 6