Akbar Ali vs Certificate Officer, Berhampore and Others

Amitava Lata, J.—In this writ petition, the petitioner challenged a notice of the Bank under the Bengal Public Demands Recovery Act, 1913. for the purpose of recovering an amount financed by the Bank in purchasing a Shallow Pumpset from Jayems Engineering'' who are the, manufacturer of Nitu'' pumpset. It appears that the West Bengal Agro Industries Corporation Ltd. was conducting the financial operation and they are makirng the arrangement with the Bank under which the actual beneficiary is shown as ''sureity''. Following the scheme of the State Government for supply of Pumpsets, such arrangements were made in which appart from the State, the Allahabad Bank is one the financers. Since the- petitioner is a poor farmer, a circular was issued by the Deputy Secretary to the Government of West Bengal, Department of Agriculture, by which remission/concession of loans was disbursed to agriculturists upto 31-3-1988 by the Department of Agriculture, as a result whereof the petitioner whose lands had fallen under the ceiling as indicated under paragraph 1(a) of such circular stand remitted. In paragraph 4 of such circular it has also further been stated that there should not be any necessity for submission of any application for remission by such farmer but the officers who accepted the loan bonds of such farmers will sanction remission in these cases and inform the concerned farmers about the remission. Therefore, the liability of the farmer, if any, stands existinguished on the basis of the circular. Surprisingly, even thereafter an appropriate certificate officer of the State under the Bengal Public Demand Recovery Officer issued a certificate on the. basis of the demand of the Allahabad Bank claiming demand of Rs. 8142.25 p as far back as in 1977-78. The petitioner invoked this writ jurisdiction of tins court by making two folds submissions. One is that since the order of remission has been, granted by the Stale and the Bank has acted as an Agent an behalf of the State, there is no loan on the part of the petitioner in making such payment to the Bank. Neither the Bank has any right to obtain certificate nor the certificate officer can issue the same on behalf of the State. there for the. circular is wrongful and liable to be quashed or set aside.

The second. part of submission as made by the petitioner is that if the Bank thought it fit that their claim is not deriving from the-remission of the State because it is under'' the direct control of the union of India and the Banking Regulations Act of the Government of India in that case also a demand notice under the Bengal Public Demand: Recovery Act cannot be made as because the Bank has to establish its case by filling a suit or an application before an appropriat civil court or Tribunal to claim and obtain a decree or order in connection. there to for the purpose of recovery of such amount. So far as the second part of submission is concerned, he has relied upon an unreported judgment passed on 2-5-1997 in W.''P. No. 921l(W) of 1997 (Ashok Kumar Ghosh & Ors. vs. State of West Bengal & Ors.). But I have to indicate herein that such order will only have a persuasive value hut cannot have any binding effect. In any event, if the court is inclined to pass a similar order or errors more than what has been passed therein in favour of the petitioner in view of the first set of submission, it will have little say in this regard. In any event, even from the affidavit of the Bank it appears that the Bank being the Banking Institution is exclusively under the control of Union of India and on which the State has practically no control, I have hardly anything to say in this regard. However, the effectiveness of the impugned circular cannot be sustainable, the Bank has to prove its case in the manner as normally they want to do so.

However, upon taking into account all the aspects of the matter I am of the view that there is no direct privity of contract between the petitioner and the Bank. Whatever privity exists in the agreement between the West Bengal Agro Industries Corporation and the petitioner or petitioners the same is only treated to be as ''sureties''.

Under these circumstances, I hold that the impugned certificate as issued by the Certificate Officer, Berhampore, on the basis of the demand of the Bank cannot be applicable as a result whereof such certificate being Annexure - ''A'' and the subsequent demand being Annexure - ''C to the writ petition are set aside.

Since neither of the respondents including the Bank is present before this court to-day as well as in the earlier date, I cannot pass any positive order in their favour as to how they will proceed for the purpose of recovering of the amount, if any. Therefore, the observation of this Court will give a guideline in this respect to all the parties concerned.

The writ petition is, thus, dispossed of. There will be no order as to costs. Let urgent xerox certified copy of this judgment and order, if applied for, be given to the learned counsel for the petitioner with a period of fortnight from the date of submission of the requisites.