HIGH COURT OF UTTARAKHAND AT NAINITAL FIRST APPEAL NO. 18 OF 2006 Co-operative Development Bank Ltd. Branch Tehri Garhwal, through its Branch Manager U.P. Co-operative Development Bank Ltd. Chouradi, New Tehri, District Tehri Garhwal …..Defendant-Appellant Vs. 1. Prem lal S/o Bal Govind R/o Vishan Patti, Thati, Kathuri District Tehri Garhwal 2. State of Uttaranchal through its Collector Tehri Garhwal …Plaintiff-Respondents 29.2.2008 Hon’ble Rajesh Tandon, J. Heard Shri K.N. Joshi, counsel for the appellant. 2. By the present first appeal filed under Section 96 of the Code of Civil Procedure, the appellant has prayed for setting aside the judgment and order dated 5.6.2003 passed by the Additional District Judge, FTC, Tehri Garhwal in O.S. No. 30 of 1999. 3. Briefly stated, the plaintiff ahs filed a suit being suit no. 30 of 1999 praying for permanent injunction restraining the defendants from recovering the amount which was due against the defendant no. 2 i.e. Uttar Pradesh Co-operative Village Development Bank Limited which he has already paid by way of receipt no. 1457 dated 2.12.1997 amounting to Rs. 40,000/-. According to the case of the plaintiff, the father of the plaintiff (hereinafter referred to as ‘the borrower’) has borrowed loan from the Uttar Pradesh Co-operative Village Development Bank Limited on 25.3.1992 to the extent of Rs. 15,000/- and again borrowed a sum of Rs. 15,000/- on 8.9.1992. Thus, the borrower in total has borrowed a sum of Rs. 30,000/-. Out of the aforesaid amount the borrower ahs repaid the first installment of Rs. 1,537/- and second installment of Rs. 3,330/- to the defendant no. 2. Thereafter, the borrower died and the remaining loan amount could not be paid to the defendants as a result of which the defendant no. 2 has sent a recover certificate to the defendant no. 1 from recovery of Rs. 28,940/- as arrears of land revenue. On the said recovery proceedings, the plaintiff as deposited a sum of Rs. 44,000/- with the Collection Amin of the defendant no. 1 on 2.12.1997 vide receipt no. 148570. Out of the said amount of Rs. 44,000/-, a sum of Rs. 40,000/- was taken towards principle amount and Rs. 4,000/- was taken a collection charges. The Collection Amin has only deposited the collection charges of s. 4,000/- in the Government Treasury and the amount of Rs. 40,000/- was not deposited by the Collection Amin in the Government Treasury. The defendant no. 2 again sent a second recovery certificate of Rs. 63,400/- in favour of the plaintiff when in point of fact the plaintiff has deposited a sum of Rs. 44,000/- including Rs. 40,000/- towards principle amount and Rs. 4,000/- towards collection charges. Therefore, the plaintiff has filed the present suit praying for the permanent injunction restraining the defendant from making recovery of the aforesaid amount. 4. A written statement has been filed on behalf of the Uttaranchal Government i.e. the defendant no. 1 admitting therein that the then Collection Amin has collected a sum of Rs. 40,000/- against principle amount and Rs. 4,000/- against collection charges. But the Collection Amin has deposited a sum of Rs. 4,000/- only in the Government Treasury and embezzled a sum of Rs. 40,000/-. The F.I.R. was also lodged against the Collection Amin under Sections 406/409/468/471/420/309 and case crime no. 1/99 was recorded in the office of Naib Tehsildar, Ghansali and the proceedings against him are still pending consideration. It has been stated that the plaintiff ahs no cause of action against the defendant no. 1 to file the suit. Section 80 of Code of Civil Procedure bars the suit of the plaintiff. The suit, therefore, is liable to be dismissed. 5. The defendant no. 2 i.e. Uttar Pradesh Co-operative Village Development Bank Limited has filed a written statement admitting therein that the borrower Balgovind was given the loan of Rs. 30,000/- out of which he has deposited the first and second installment of Rs. 1,537/- and Rs. 3,330/- respectively. In paragraph 12, it has been stated as under:- “ƒ„- oknh uEcj ƒ ds ikl olwyh izek.k i= oknh ds firk ds uke olwyh gsrq Hkstk gS] tcfd _.kh ds [kkrs esa ek= †]Šˆ‰@& :i;s gh tek gS 'ks"k /kujkf’k dks izfroknh uEcj ƒ us olwyh izek.k i= ds vk/kkj ij olwy dj cSad esa tek ugha fd;k gS bl izdkj oknh ds firk ds fo:) f}rh; jktLo olwyh eq- ‰Œ]ˆ‹Œ@& :i;s C;kt o nf.Mr C;kt lfgr izfroknh uaŒ ƒ ds ikl olwyh ckcr~ Hkstk Fkk] oknh dk vkjksi eux<ar o vlR; rF;ksa ij vk/kkfjr gSA” 6. It has further been stated that the plaintiff has no cause of action against the defendant no. 2 to file the suit. The suit f the plaintiff is liable to be dismissed with costs. 7. On the pleadings of the parties, the trial court has framed the following issues:- 1. As to whether the plaintiff has deposited a sum of Rs. 40,000/- towards disputed loan on 2.12.1997 to the defendant no. 1 and the defendant no. 2 is not entitled to recover the said amount from the plaintiff? 2. As to whether the suit is bad by not impleading Collection Amin as party? 3. To what relief the plaintiff is entitled to? 8. The plaintiff has examined Prem Lal as P.W.1. The defendant no. 1 has not led any oral evidence. The defendant no. 2 has examined W.1. 9. Towards the documentary evidence, the plaintiff has produced the original receipt no. 148570 dated 2.12.1997 i.e. paper no. 45 ga. 10. While deciding as to whether the plaintiff has deposited a sum of Rs. 40,000/- towards disputed loan on 2.12.1997 to the defendant no. 1 and the defendant no. 2 is not entitled to recover the said amount from the plaintiff, the trial court has recorded the finding that the Collection Amin has deposited a sum of Rs. 4,000/- in the Government Treasury and the remaining amount of Rs. 40,000/- was embezzled by him ad the criminal case is pending against him. Hence, the aforesaid issue was decided in favour of the plaintiff. 11. While deciding as to whether the suit is bad by non- impleadment of Collection Amin as party, the trial court has recorded the finding that since the plaintiff has filed the present suit for permanent injunction and the defendant no. 2 has issued the recovery certificate for collection of the disputed amount, therefore, the Collection Amin was not a necessary party and the issue was decided against the defendants. 12. On the basis of the aforesaid, the trial court has decreed the suit of the plaintiff. 13. A perusal of the record clearly establishes that recovery proceedings against the plaintiff were initiated for Rs. 48,940/- and the defendant has collected only Rs. 40,000/- apart from 4,000/- towards collection charges and, therefore, even the first recovery proceedings were not fully satisfied and it was incumbent upon the Collection Amin either to recover the entire amount or to issues fresh process or to take any other action against the defaulter. But accepting a sum of Rs. 40,000/- was against the recovery certificate which was issued against the plaintiff. Apart from that, once it has come on the record that the amount of Rs. 40,000/- was realized by the Collection Amin, the trial court should have directed the Collection Amin to appear and the plaintiff should have arrayed the Collection Amin as party in the proceedings who has admittedly taken the amount from the plaintiff and the court should have directed the Collection Amin to deposit the amount in the treasury. 14. From the facts of the present case, it is evident that the State revenue having been forfeited and even the plaintiff has been protected by depositing only a sum of Rs. 40,000/- and the entire amount which was due against the plaintiff has not been satisfied. 15. In view of the aforesaid, appeal is sent back to the trial court for deciding afresh. The plaintiff will be given an opportunity to impleade the Collection Amin and the court will see that the State revenue is not forfeited. 16. Subject to the aforesaid observations, appeal is allowed and is sent back to the court below for deciding afresh. No order as to costs. (Rajesh Tandon, J.) 29.2.2008 Avneet