1 S.B. CIVIL WRIT PETITION NO.3150/2006. Panna Lal & Ors. Vs. State of Rajasthan & Ors. Date of Order :: 20th February 2009. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr.S.P.Sharma, for the petitioners. Mr.Usman Ghani, for the respondents. ..... BY THE COURT: By way of this writ petition, the petitioners seek to question the coercive recovery proceedings as adopted by the respondent No.2, Sahakari Bhoomi Vikas Bank Limited, Bhilwara, Branch-Mandal against their agricultural land under the impugned sale proclamation (Annex.7) and auction notice (Annex.8). The petitioners, said to be the legal representatives of Chhoga son of Kalu Jat, have averred that one Udailal son of Mangilal resident of Sardar Nagar, by playing fraud, took a loan of Rs.1,90,000/- from the respondent-Bank for purchase of a tractor; and that the said Shri Udailal, in conspiracy with the Bank and the dealer concerned, while putting late Shri Chhoga under influence and taking him in confidence, made him to put thumb impressions on certain papers though he was 70 years of age, weak of eye sight, and illiterate. The 2 petitioners have further averred that the tractor in question was used by said Shri Udailal who did not deposit any instalments towards repayment; that upon receiving a notice, the petitioners and late Shri Chhoga approached the respondent-Bank and then only came to know about the loan transaction. The petitioners have yet further averred that they had a tussle with Udailal over the custody of the tractor; that an FIR was also lodged in that regard and the tractor was recovered from the possession of Udailal with the intervention of the Court; and in the meantime, the principal borrower Chhoga expired in the year 1996. The petitioners submit that under the force of circumstances, they agreed to clear the loan in part and in easy instalments and in that regard did make some deposits with the Bank totalling to about Rs.27,300/- but could not make further deposit and the Bank issued a demand notice in the name of late Shri Chhoga on 12.04.1999 (Annex.3) whereupon they requested the Bank to recover the loan amount from the tractor in question that was auctioned on 30.06.1999 fetching an amount of Rs.1,05,500/-. According to the petitioners, they believed that the loan dispute was over and nothing remained outstanding but then, they received further notice issued in the name of Shri Chhoga for making 3 payment of the due instalments to the tune of Rs.72,870/-; that they made a request to the Bank to drop the proceedings but the Bank did not agree and proceeded to issue the impugned sale proclamation dated 18.01.2006 (Annex.7) and thereafter issued the impugned auction notice (Annex.8). While questioning the auction proceedings, the petitioners have taken the grounds in the petition that late Shri Chhoga never obtained any loan; that it was only the conspiracy of Bank Officers and Udailal whereby such sanction was made; that thumb impressions of Chhoga on a few papers would not make him or his legal representatives liable because it were a case of fraud on the part of said Shri Udailal; that they had deposited about Rs.27,300/- and the loan amount has also been recovered by the Bank by putting the tractor to auction and hence, nothing was further recoverable from the petitioners; that agricultural land of the petitioners cannot be put to auction as the same was never mortgaged with the Bank; that the provisions of the Co-operative Societies Act providing for denial of very basic principles of natural justice without any safeguard are opposed to the cannons of reasonableness and fairness; that petitioners' predecessor was the victim of conspiracy and even otherwise, the respondents have not explained as to how 4 such a huge amount of about Rs. 3,64,952/- was recoverable from the petitioners. The petitioners have prayed for the reliefs that the Bank be directed to produce the record of loan documents; that recovery proceedings under the aforesaid sale proclamation and auction notices (Annexs.7 & 8) be quashed; and in the alternative, the respondents may be directed to re-determine the principal amount and to accept the same in instalments while dropping the recovery of the amount of accrued interest. Having heard learned counsel for the parties and having examined the averments taken in the writ petition and the annexed documents, this Court is unable to find any reason to exercise extra-ordinary writ jurisdiction in this matter. The main plank of the submissions of the petitioners has been that their predecessor late Shri Chhoga was 70 years old illiterate person with weak eye sight and though he never took the loan from the Bank concerned but one Udailal son of Mangilal made him to put some thumb impressions on some of the papers. The allegations are primarily directed against the said Shri Udailal son of Mangilal but even while levelling such allegations, the petitioners have chosen not to join him a party to this writ petition. Obviously, such allegations cannot even be gone into in the absence of Udailal 5 and deserve to be ignored. Moreover and in any case, the averments as taken by the petitioners are in nature of allegations against the Bank Officers and the said Shri Udailal with the assertion as if late Shri Chhoga had not taken the loan in question even if his thumb impressions were available on the relevant papers. Such averments only lead to serious disputed questions of fact and could least be adjudicated in the writ jurisdiction of this Court. Learned counsel for the petitioners emphasized that the respondents have not produced the relevant documents on record and have not shown if the land was mortgaged with the Bank. However, the fact that land in question was in mortgage with the respondent Bank is borne out from the copy of Jambandi (Annex.1) as placed by the petitioners on record. On other aspects, there does not appear any reason to summon the record from the Bank concerned on the bald allegations of the petitioners that are substantially contradicted by their own assertion of having made certain payments to the Bank against the loan in question. The petition remains an uncertain one wherein some bits and pieces of allegations have been made without even joining the affected person as parties and without supporting the same by 6 any cogent material. The petition remains totally bereft of substance and could only be dismissed. Learned counsel for the petitioners submitted in the alternative that the Bank may be required to extend some concession to the petitioners looking to their poor condition. In relation to such submissions, noteworthy it is that before filing this writ petition, the petitioners do not appear to have even made a representation to the Bank concerned stating any of their propositions. The petitioners having not even made a representation in regard to the said alternative prayer to the Bank concerned, this Court finds no justification to issue any direction or even to make any observation in that regard. The writ petition fails and is, therefore, dismissed; but in the circumstances, without any order as to costs. (DINESH MAHESHWARI), J. MK