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Judgment
13 paragraphs · 355 wordsHon''ble Sudhanshu Dhulia, J.—Mr. Karan Anand, Counsel, for the petitioner. Mr. S. K. Jain, Senior Counsel, assisted by Mr. B.S. Thind, Counsel, for respondent no. 1.
Mr. Paresh Tripathi, Additional Chief Standing Counsel, for the State of Uttarakhand.
Let notice may go to respondent no. 4. Steps to be taken within a week.
Learned senior counsel Mr. S. K. Jain appearing for respondent no. 1 seeks two weeks'' time to file counter affidavit.
State may also file its counter affidavit within two weeks.
The principal contention of the petitioner is that he was not the original borrower but he was only a guarantor of a lone taken by respondent no. 4 from respondent no. 1 and now because of the alleged default of payment by respondent no. 4 a recovery proceeding has been initiated against the petitioner. Petitioner further submits that once the special Act i.e. The Uttar Pradesh Public Moneys (Recovery of Dues) Act, 1972 has brought into operation what will be applicable will be Section 4(2)(b) of the Act according to which the Bank shall first exhaust its remedy with the borrower and only thereafter once a certificate is received by the Collector a recovery proceeding may be initiated against the petitioner. Section 4(2)(b) of the Uttar Pradesh Public Moneys (Recovery of Dues) Act, 1972 reads as under:-
Savings.- (1)...
(a)...
(b)...
(2)...
(a)...
(b) in every case of a mortgage, charge or other encumbrance on immovable property, such property or, as the case may be, the interest of the defaulter therein, shall first be sold in proceedings for recovery of the sum due from that person as if it were an arrear of land revenue, an any other proceeding may be taken thereafter only if the Collector certifies that there is no prospect of realization of the entire sum due through the first mentioned process within a reasonable time.
Therefore, as an interim measure, it is directed that recovery proceeding initiated against the petitioner shall not be enforced till the next date of listing. List this matter after two weeks in the daily cause list.