Kishan Lal and Another vs The Punjab National Bank and Others

G.R. Majithia and S.K. Jain, JJ.—The petitioners have challenged the orders of the prescribed Authority dated July 1, 1993 (Annexure. P-5 and P-6 to this writ petition) in this petition under Articles 226/227 of the Constitution of India.

The fact:-

The petitioners took a loan of Rs. 75,000/- for purchase of tractor. They executed Term Loan Agreement dated June 18, 1984 and Mortgage Deed dated June 6, 1984. They also took a loan of Rs. 12,000/- for purchase of trolley and executed letter of hypothecation dated June 18, 1984. The loan was to be repaid in instalments. They deposited a sum of Rs. 15,000/- towards tractor loan on December 14, 1985 and Rs. 2,000/- towards trolley loan on December 17, 1985. They did not deposit any other instalments. The respondent-Bank on the basis of the Mortgage Deed. Loan Agreement and Hypothecation Deed moved the Prescribed Authority (Sub Divisional Officer Civil, Narwana) u/s 8-A of the Haryana Agricultural Credit Operations and Miscellaneous Provisions (Bank) Act, 1973 (for short, the Act). The Prescribed Authority passed a decree in favour of the Bank after following the prescribed procedure. The execution of the decree was taken out. The petitioners filed objections to the execution. These were rejected. They petitioners have challenged the orders of rejection in this writ petition.

When the writ petition came up for hearing, we thought it proper to dispose of the objections. We asked the learned counsel for the petitioner to substantiate the objections which they had taken to the execution of the decree. He submitted that the petitioners be allowed to lead evidence. To avoid delay, we permitted the parties to lead evidence. The petitioners did not lead any evidence except that their counsel tendered a photostat copies of the notice and statements of accounts, Ex. C.1 and C.2. The respondent-Bank examined Sh. Uma Kant Ghai, Senior Manager, Punjab National Bank, Tohana, on January 10, 1994. His statement reads thus :-

" I know the facts of the case from the records and can depose on the basis of the record. Krishan Lal and Jia Lal had taken a loan amounting to Rs. 75,000/- for the purchase of Tractor and executed documents on 18.6.1984. They had also taken a loan of Rs. 12,000/- for the purchase of Trolley and executed documents on 7.8.1984. Documents pertaining to Tractor are Exh. R.1 to Exh. R.4 and that of Trolley are Exh. R-5 to R-7. The amount mentioned as due in copy of notice Exh. C-1 was incorrectly recorded. The entries dated 24.12.1985 in Exh. C-2 were recorded incorrectly. In fact these should have been shown on the debit side. These were not the payments made by the petitioners but the same were bank charges which have to be shown on the debit side. We have charged interest according to the terms of the agreement.

Cross-examination by Mr. Bhoop Singh, Advocate:

The amount mentioned in Exh. C-1 was the over due amount and not the total amount due. By depositing Rs. 72,000/- as on 1.7.1988, the accounts of the petitioners would have been running regularly. By paying this amount, he would have paid all the arrears of instalments but not the future amount due."

As per statement of accounts, Exhibit R-2 a sum of Rs. 2,29,673.60 is due towards tractor loan as on September 19, 1993 and a sum of Rs. 7,567/- is due towards Trolley account as is evidenced by statement of accounts, Exhibit R-7.

The learned counsel for the petitioners did not challenge the correctness of the statement of accounts. He submitted that in notice, Exhibit C-1, it was mentioned that a sum of Rs. 72,000/- was due. Shri Uma Kant Ghai, Senior Manager, Punjab National Bank, Tohana has explained that the amount mentioned in Exhibit C-1 was not the total amount due from the petitioners. By depositing the amount mentioned therein, the account of the petitioners would be running regularly meaning thereby that by paying a sum of Rs. 72,000/- the petitioners would have paid all the arrears of instalments due on the date of issue of the notice.

It is recited in loan agreements, Exhibits R-1 and R-6, that the Bank shall have the first charge on the hypothecated goods, viz., tractor and trolley. Letters of hypothecations, Exhibits R-4 and R-5, recites that the said goods shall remain and continue to be hypothecated and charged with the Bank till the entire dues of the Bank are paid in full. The petitioners deposited Rs. 15,000/- on December, 1985 towards the tractor loan and Rs. 2,000/- towards the trolley loan on December, 17 1985. Mortgage Deed, Exhibit R-3, under which land measuring 89 Kanals 8 Marias was mortgaged as security for purchase of tractor and implements provided for repayment of the loan in six monthly instalments of Rs. 5300/- each commencing from December 30, 1984 and the last instalment of Rs. 6100/- was to be paid on June 30, 1985. Similarly, the loan agreement for the purchase of the tractor envisaged repayment of the loan in instalments. The petitioners did not deposit as provided under the loan agreements except the deposits referred to supra. On their failure to make the deposits, the Bank forwarded the certificate to the Collectors mentioned in Section 8-A of the Act. Section 8-A(2) of the Act provides that the certificate referred to in Sub-section (1) of Section 8A may be forwarded to the Collector within a period of three years from the date when the amount specified in the certificate fell due. Sub-Section (3) of Section 8-A says that on receipt of the certificate, the Collector shall recover the amount from the agriculturist as arrears of land revenue. The Collector, after hearing the petitioners verified the amount due to the Bank which was to be recovered as arrears of land revenue. The petitioners did not deposit the amount which became due for which recovery certificate had been issued. The petitioners'' land, as mentioned in the mortgage deed, on which there was a first charge of the Bank, has to be put to sale for realization of the amount due. When the property was being put to auction, the attempt was thwarted by moving objections. The learned counsel for the petitioners did not dispute the certificate issued by the Bank or that it could be recovered as arrears of land revenue. His only defence is that the debit due to a scheduled Bank falls within the purview of the Haryana Relief of Agricultural Indebtedness Act, 1989 (for short, the Relief Act). Consequently, the remedy of the Bank, if any lay under the Relief Act and not under the Act. Section 3 of the Relief Act says that every debt, together with interest due thereon, owed on the commencement of this Act by a debtor shall be deemed to be wholly discharged, if (i) in the discharge of his debt the debtor had paid a sum exceeding or equivalent to double the amount of the principal at any time before the commencement of the Act or (ii) after the commencement of this Act, he pays, in the discharge of his debt, a sum which, together with any sum already paid in the discharge of such debt, is equivalent to double the amount of the principal. Section 5 of the Relief Act provides for setting up of Debt Conciliation Boards by the State Government for the purpose of settlement between debtors and their creditors. Sections 6 to 12 of the Relief Act provide for the procedure to be followed by the Debt Conciliation Board when an application is moved by a debtor or any of his creditors for settlement. Section 2(h) defines "debtor" to mean an agriculturist, an agricultural labourer or a rural artisan who owes a debt. Sections 2(a), 2(b) and 2(i) of the Relief Act define agricultural labourer, agriculturist and rural artisan. The same read thus:-

"2(a). "agricultural labourer" means a person who follows any one or more of the following agricultural occupations in the capacity of a labourer on hire or exchange, whether paid in cash or in kind or partly in cash and partly in kind:-

(i) farming including cultivation and tillage of soil etc; (ii) diary farming.

(iii) production, cultivation, growing and harvesting of any horticultural commodity;

(iv) raising of livestock, bees or poultry; and

(v) any practice performed on a farm as incidental to or in conjunction with farm operations (including any forestry or timbering operations) and preparation for market and delivery to storage or to market or to carriage for transportation of farm products;

2(b) " agriculturist" means a person who owns land and whose principal means of livelihood is income from cultivation of such land or partly by income he gets as wages in cash on kind on partly in cash or partly in kind, in connection with the agricultural occupation he performs.

2(h) "rural artisan" means a person who does not own any agricultural land and whose principal means of livelihood is production or repair of traditional tools, implements and other articles or things used for agriculture or purposes ancillary thereto and also a person who normally earns his livelihood by practising a craft either by his labour or by the labour of the members of his family in a rural area."

A bare reading of these definitions indicates that agricultural labourer is a person who follows any one or more of the agricultural occupations mentioned therein in the capacity of a labourer on hire or exchange, whether paid in cash or in kind or partly in cash and part in kind. "Agriculturist" is a person who owns land and whose principal means of livelihood is income from cultivation of such land or partly by income he gets as wages in cash or in kind or partly in cash and partly in kind in connection with the agricultural occupation he performs. "Rural artisan" is a person who does not own any agricultural land and whose principal means of livelihood is production or repair of traditional tools, implements and other articles or things used for agriculture or purposes ancillary thereto and also a person who normally earns his livelihood by practising a craft either by his labour or by the labour of the members of his family in a rural area. The petitioners have not proved by any cogent evidence that they are agricultural labourers or agriculturists or rural artisans, as defined in Section 2 of the Relief Act. Further, it is not their case that they are seeking a declaration that the debt stood discharged as they had paid the amount as mentioned therein. We are not able to appreciate as to how they can bank upon the Relief Act and urge that the amount due from them can be recovered under its provisions. The objections that they are entitled to protection under the Relief Act has no merit and is only fanciful.

The Bank is recovering the loan by enforcing the hypothecation and the mortgage deeds and no fault can be found with it.

For the reasons stated above, the writ petition fails and is dismissed.