Mangat Ram vs Oriental Bank of Commerce and another

Swatanter Kumar, J.—This revision is directed against the order dated January 6, 1997, passed by the learned Additional District Judge, Sirsa, dismissing the appeal of the plaintiff-appellant with costs. In order to appreciate the rival contentions raised on behalf of the parties by their learned counsel, reference to certain basic facts would be necessary.

The plaintiff had borrowed a sum of Rs. 59,900 from Oriental Bank of Commerce, Mandi Dabwali and agreed to repay the said loan with interest at the rate of 12.5 per cent. per annum. As the plaintiff admittedly defaulted to repay the said amount in terms of compromise, the Sub-Divisional Officer (Civil), while exercising his power as prescribed authority under the Haryana Agricultural Credit Operations and Misc. Provisions (Banks) Act, 1973, passed an order of recovery of a sum of Rs. 90,780.90. Challenging this order passed by the prescribed authority the borrower filed a suit for declaration that the order of recovery dated June 14, 1995, was illegal, void and it had not taken into consideration the benefits available to the plaintiff u/s 4 of the Haryana Relief of Agricultural Indebtedness Act, 1989. Along with the suit, the plaintiff had filed an application under Order 39, rules 1 and 2, read with section 151 of the Civil Procedure Code, 1908, praying for an ad interim injunction restraining the defendants in the suit from effecting recoveries in furtherance to the order dated June 14, 1995. The application was contested by the bank who stated that the benefit of Rs. 10,000 available to the plaintiff had already been given and accounted for in the statement of accounts and it is thereafter that the said sum of Rs. 90,780 along with interest and costs is payable by the plaintiff.

Upon hearing learned counsel for the parties, the learned trial court vide its order dated February 9, 1996, held that there was no merit in the injunction application and dismissed the same. This order was assailed in appeal before the learned Additional District Judge who affirmed the view taken by the learned trial court and dismissed the appeal as already noticed. This gave rise to the filing of the present revision petition.

Learned counsel appearing for the petitioner has contended that the benefits available to the petitioner under the Act of 1989 were not given and even otherwise the statement of account was not correct, as such recovery ought not to be effected in furtherance to the execution of the order dated June 14, 1995. Secondly, he contended that the amendment to the Haryana Act which was introduced on January 7, 1990, cannot be given retrospective effect so as to deprive the petitioner of his existing rights or interest. Further contention is that bank cannot charge compound rate of interest on the amounts due from the petitioner.

In reply to these contentions learned counsel appearing for the bank countered the submissions arguing that amendment of section 2 of the Haryana Relief of Agricultural Indebtedness Act, 1989, excludes the scheduled banks from the purview of this Act. As such the petitioner cannot claim any benefit on that basis. The certificate dated June 4, 1995, was in fact issued, after due participation by the petitioner and when he sought time to repay the amount in instalments on the basis of a compromise. Learned counsel further contended that the interest has been charged in terms of the contract/mortgage deed which was executed between the parties and amount has been calculated after giving benefit of Rs. 10,000 as required under law to the petitioner.

It has been specifically noticed in the judgment of the learned first appellate court that the plaintiff had admitted that the benefit of Rs. 10,000 had been given to his account as debt relief while he had paid another sum of Rs. 6,000. In face of this admission, I would not be willing to entertain the contention that the benefit of Rs. 10,000 on account of debt relief as stated by the bank has not been given to the petitioner. This point at the very out-set, I would answer against the petitioner.

There is no dispute to the fact that the Haryana Relief of Agricultural Indebtedness Act, 1989, was amended and the scheduled banks were excluded from the operation of the provisions of this Act by insertion of sub-clause (xi) to section 2 of the said Act. Further there cannot be any dispute that the respondent-bank is a scheduled bank and would not be covered under the provisions of the said Act. But the natural consequence thereof would be, that the allegedly claimed benefits by the bank in relation to rate of interest and not more than double the amount than loan to the petitioner being not recoverable would not be available to the petitioner in the present case. Furthermore, the amending provisions of section 2 take away the very applicability of these provisions of the Act to the scheduled banks. Once the Acts does not apply by a legislative mandate the courts obviously cannot grant any benefit accruing under the unamended provisions to the petitioner. The amendment of the Act divests the petitioner of any such benefits if at all had accrued to him under the unamended law. The certificate in question for recovery of the amount was issued on June 14, 1995, much subsequent to the date of amendment and, as already noticed, the petitioner had voluntarily participated in those proceedings without any protest.

It was but obligatory for the prescribed authority to conduct its proceedings in accordance with the provisions of the amended Act which had already come into force prior to the passing of the recovery certificate in question. The certificate issued by the prescribed authority would not stand vitiated on the ground that the amending Act cannot be given retrospective operation. Firstly this question does not arise because certificate was issued much after the law was amended and secondly, the petitioner not only participated in those proceedings but also sought benefit before the prescribed authority. No invested or determined right of the petitioner has been effected by those proceedings in the facts and circumstances of the present case. A mere existing right which may arise out of a procedural or other beneficial law cannot be defended or placed at par with determined or vested rights as on the date of amendment. In this regard it will be relevant to refer to a Full Bench decision of this court in the case of Kaka v. Hassan Bano [1998] 1 PLR 1, wherein it has been held as under :

"It is a settled principle of law that the right of the parties which are determined by the orders/judgments of the courts of competent jurisdiction and have become final are the vested rights in contrast to existing rights. Vested rights of a party cannot be taken away by implication. The Legislature by a clear language has to spell out such a consequence on the statute itself. Even the Legislature by enactment of law cannot render a judgment ineffective or redundant."

"In the light of this decision we now advert to discuss the scope of retrospectivity of such laws. Every statute is prime facie prospective in operation unless it is expressly or by necessary implication made to have retrospective operation. It is only the procedural laws which are normally treated to be retrospective, while the law relating to vested rights is prospective."

"The effect of the application of this principle is that cases although instituted under the old Act, but still pending are governed by the new procedure under the amended law, but whatever procedures were correctly adopted and concluded under the old law cannot be opened again. (Refer Nani Gopal Mitra Vs. The State of Bihar, ."

Learned counsel for the petitioner has relied upon the case of Punjab Tin Supply Co., Chandigarh and Others Vs. Central Government and Others, , to impress his arguments that the rights prior to amendment are preserved and cannot be taken away. Even this judgment of the Hon''ble apex court does not lay down the principles as argued by learned counsel for the petitioner. On the contrary, in paragraph No. 17 of the said judgment, the Hon''ble Supreme Court clearly mentions that substantive rights and vested rights are protected and even they could be taken away if the legislative intent is clear and compulsive. The rights of the present petitioner can neither be termed as substantive rights nor vested rights. As such the said judgment is of no help to the petitioner.

The second contention raised is in relation to the rate of interest payable to the bank. Once there is a mortgage deed executed between the parties and the bank asking for recovery of amount is a scheduled bank, consequently excluded from the operation of the aforesaid Act, then the question of interest would not be regulated by the provisions of section 34 of the Code of Civil Procedure, but would be controlled by Order 34, rule 11 of the Code. This contention need not detain me any longer in view of the judgment of this court in the case of Gurdev Singh and Another Vs. Punjab National Bank and Others, where the court following the judgment of the Hon''ble Supreme Court of India in the case of State of Punjab and others Vs. Krishan Dayal Sharma, held as under (page 111 of AIR 1998 P&H 111) :

"A bare reading of the provisions of section 34 and Order 34, rule 11 of the Code admit no conflict between them. They are distinct and different provisions which must operate in their own field without being meddlesome to the sphere of the other. Mortgage suits are based upon a special contract. The terms and conditions of the mortgage including the rate of interest is the essence of contract between the parties, but for the terms and conditions contained therein the banker would not have advanced loan to the borrower. The contract provides for a specific rate of interest and if such a rate of interest is awarded by the court after due deliberations at the rate of passing of the decree, it cannot be altered or varied by the executing court. The relief which is declined or granted by the court of competent jurisdiction, which passed the decree, cannot be frustrated to the disadvantage and prejudice of the other party by the executing court, because under no circumstances the executing court sits in appeal over the judgment and decree passed by the court of competent jurisdiction."

Resultantly, even the second contention raised on behalf of the petitioner must fail.

Another pertinent fact of which the court cannot lose sight is that the petitioner herein had appeared before the prescribed authority which passed the order dated June 14, 1995. There he had not only participated but had asked for time to pay the amount claimed by the bank in instalments. The matter was pending before the prescribed authority for a considerable period. The learned trial court in the impugned order noticed as under :

"After the perusal of order dated June 14, 1995, by which the suit of defendant No. 1 was decreed by the prescribed authority defendant No. 1 in which plaintiff appeared and admitted that he has borrowed amount of Rs. 59,980 on June 7, 1985, but he cannot pay the same amount in lump sum and he may kindly be allowed to pay the same in instalments. It is also stated in that order that the plaintiff in this case has deposited amount of Rs. 30,000 and is ready to pay the remaining amount in instalments but thereafter the plaintiff was directed to deposit the amount of Rs. 20,000 on May 9, 1995, but the plaintiff deposited Rs. 10,000 instead of this. Thereafter did not deposit any instalment. No such point was argued before the prescribed authority."

The above conduct of the petitioner clearly shows that having taken advantage of making payments in instalments of the claim amount the petitioner cannot be permitted to state to the contrary now, more so just because he has filed the suit before the civil court. Such conduct in equity would be sufficient to decline the relief of injunction to the plaintiff at least prima facie at this stage of the suit.

Learned counsel appearing for the respondent has also relied upon a Division Bench judgment of this court in the case of Gulzar Singh (Decd.) v. Punjab National Bank [1996] ISJ 131, to argue that the civil court cannot go behind the decree. The order passed by the prescribed authority is like a decree of a court and, therefore, the court cannot go behind the said order. I have no hesitation in accepting this contention. I find no error in the concurrent view prima facie taken by the learned courts below in declining the relief of interim injunction to the petitioner. Consequently, this petition is dismissed with no order as to costs.