THE HON’BLE SRI JUSTICE NOUSHAD ALI WRIT PETITION No. 16630 of 2008 DATE: 02.02.2011 Between: Gubbala Subrahmanyeswara Rao … Petitioner and The State Bank of Hyderabad, Palakole Branch, rep by its Branch Manager, Palakole West Godavari District & Others … Respondents THE HON’BLE SRI JUSTICE NOUSHAD ALI WRIT PETITION No. 16630 of 2008 ORDER: The petitioner, who had availed a loan and defaulted in repayment, has filed this writ petition invoking the scheme, namely “Agricultural Debt Waiver and Debt Relief Scheme–2008” seeking waiver of the loan obtained from the 2nd respondent – State Bank of Hyderabad. 2. The petitioner was an agriculturist owning an extent of Ac.1-00 of land. He mortgaged the said land and availed a loan of Rs.1,25,000/- in the year 1999 from the 2nd respondent–bank. The petitioner defaulted in repayment of the said amount and the 2nd respondent–bank issued a legal notice calling upon him to repay an amount of Rs.2,62,837/-. As the said notice did not evoke any response, the 2nd respondent–bank filed a suit O.S. No.71 of 2004 in the Court of Senior Civil Judge, Narsapur, West Godavari District. The suit was decreed exparte and the preliminary decree was passed on 08.10.2004 and the final decree was passed on 05.09.2005. Thereupon the 2nd respondent–bank filed a petition seeking execution of decree in EP No.112 of 2006. It appears that the said Execution Petition was also ordered exparte and the mortgaged land was put to auction on 30.04.2007. It is said that the auction was declared in favour of 3rd respondent–auction purchaser and the 3rd respondent deposited the sale amount on 30.04.2007, thereby, the sale was confirmed and the sale certificate was also issued on 18.12.2004. The amount was transferred to the Bank and the account was also closed on 15.12.2007. 3. In the meanwhile, the Government of India introduced a scheme called ‘Agricultural Debt Waiver and Debt Relief Scheme – 2008’ in order to relieve the marginal and small farmers from the loans availed by them from the Scheduled Commercial Banks and other lending institutions indicated therein. As per the scheme, the benefit was extended, inter alia, in the case of short-term production loans where the amount of such loans were disbursed upto 31.03.2007 and over due as on 31.12.2007 and remained unpaid till 29.02.2008. The petitioner claiming to be a small farmer, availing the loan has filed this writ petition seeking extension of the benefits under the said scheme. 4. Sri Bokka Satyanarayana, learned counsel appearing for the petitioner would submit that the petitioner, being a small farmer, is entitled for the benefits extended under the aforesaid scheme. The counsel would not, however, dispute that a decree had been passed against the petitioner for recovery of the amount and the same became final. Notwithstanding the same, the counsel would submit that the decree was an ex-parte decree and the same is liable to be ignored as the same was not challenged on account of the fact that the petitioner is an illiterate. Further, the children of the petitioner, who are members of the joint family, are fighting for their rights seeking partition by instituting a suit OS No.154 of 2007 in the Court of Senior Civil Judge, Narsapur, West Godavari District. The learned counsel would, therefore, contend that in as much as the loan availed was within the period stipulated in the scheme, the petitioner is entitled to get back the mortgaged land. He would further submit that by virtue of the interim order of this court dated 16.11.2009, the petitioner has already deposited a sum of Rs.2,00,000/- and by subsequent order dated 24.12.2009, this court granted the petitioner liberty to pay the balance amount. 5. On the other hand, Sri N Siva Reddy, the learned counsel for the Respondent Nos. 1 and 2, would submit that the petitioner is not entitled to invoke the scheme, in as much as, the loan stood discharged and the account has been closed even before the date stipulated therein. He would further contend that the decree having attained finality and given effect to, cannot be upset at this point of time. 6. I have considered the rival contentions and perused the material available on record. It is true that the loan availed by the petitioner falls within the period covered by the scheme. However, it could be seen that the preliminary decree was passed on 08.10.2004 and the final decree was passed on 05.09.2005. The 3rd respondent was the auction purchaser and the amount was also deposited on 30.4.2007, sale was confirmed and sale certificate was also issued on 18.07.2007. The bank was permitted to draw the amount from the Court and the account was also closed on 15.12.2007. As mentioned earlier, one of the conditions of the scheme is that the loan amount should have disbursed upto 31.03.2007 and over due as on 31.12.2007 and remained unpaid till 29.02.2008. From this, it is clear that the loan should have remained unpaid till 29.02.2008; whereas in the instant case, the amount was repaid and the account was also closed by 15.12.2007 itself. Therefore, even though the loan to the petitioner was disbursed prior to 31.03.2007, but as on 31.12.2007, the amount was not overdue as the amount stood repaid and the account closed by 15.12.2007. 7. The contention of the learned counsel that the petitioner was illiterate and that the children of the petitioner are working out their legal remedies in the Court for their rights over the property in dispute cannot be countenanced. Admittedly, the decree had attained finality and the illiteracy of a person cannot be a ground to upset the same without there being a challenge to the decree. The decree cannot be upset even in a collateral proceeding. Further, the petitioner has not even chosen to challenge the sale or issuance of the sale certificate. Equally, the suit said to have been filed by his children also cannot be a ground to upset the decree passed against the petitioner. In the circumstances, it must be held that the petitioner is not entitled to avail the benefit of the scheme and consequently not entitled for the relief sought in the writ petition. 8. Needless to say that the amount deposited by the petitioner pursuant to the interim order dated 16.11.2009 passed by this Court is liable to be returned. Having regard to the fact that the amount was with the bank for a considerable period, I deem it appropriate to direct payment of interest at the rate applicable to fixed deposit i.e. @ 9% per annum from the date of deposit till the date of repayment. In the circumstances, the 2nd respondent–bank is directed to refund the amount of Rs.2,00,000/- (Rupees two lakhs only) deposited by the petitioner with interest @ 9% per annum, within a period of two weeks from the date of receipt of a copy of this order. 9. Subject to the above direction, the writ petition is disposed of. No order as to costs. _________________________ JUSTICE NOUSHAD ALI 02.02.2011. NOTE:- Issue C.C. within one week. (B/O) KSM/MSR