Ram Sanehi and Another vs State of U.P.and Others

D.K. Seth, J.—The petitioner had obtained a loan of Rs. 1,10,030 for agricultural purposes for purchasing a tractor. On account of default in repayment of the loan amount, a recovery certificate was issued on 15th February, 1997 for a sum of Rs. 1,82,147.

Learned Counsel for the petitioner contends that the petitioner had obtained the loan on 16111991. According to him, the recovery is barred by reason of Section 11A(2) of the U.P. Agricultural Credit Act, 1973 (hereinafter referred to as 1973 Act) since the recovery certificate was sought to be referred after three years when the amount specified in the certificate fell due. He also contends that since the loan is covered by the 1973 Act, therefore, it is incompetent on the part of the Collector to initiate proceedings for recovering the said amount under the provisions of U.P.Z.A. L.R. Act for the purpose of recovering the same as arrears of land revenue. Inasmuch as, according to him, in view of the provisions of 1973 Act such recovery could be initiated only according to the procedure laid down in the said Act and not otherwise. He contends that alternatively even if it can be recovered under the provisions of U.P.Z.A.L.R. Act and the Rules framed thereunder, in that event, the present proceedings cannot be maintained on the ground that the initiation of the proceedings having been made in violation of subsection (2) of Section 11Aofthe 1973 Act, and as such the proceedings is liable to be quashed. He further contends that in view of the limitation having been set in the meantime, the amount has become irrecoverable. He also contends that the recovery has been stayed in the meantime by an order, dated 431997 which stood extended from time to time but had now in the meantime stood expired.

Mr. Satish Chaturvedi, learned Counsel for the respondent, on the other hand contends that the proposition of law as has been sought to be advanced by Mr. Verma, learned Counsel for the petitioner, is wholly misconceived. According to him, as pointed out in paragraph 10 of the counteraffidavit, the petitioner had admitted and agreed to pay the amount when the amount was demanded from him by the bank. The petitioner had through his letters dated 23rd May, 1995, 24th September, 1996 and 10th February, 1997 had admitted the liability and promised to pay the dues. Copies of such letters are Annexure C.A.2, 3 & 4 respectively. Neither contents nor genuineness of the said letters have been disputed by the petitioner, Even in paragraph 4 of the writ petition, the petitioner himself had given diverse dates, on which he had deposited various amounts between 2531992 and 244 1996. Therefore, according to Mr. Chaturvedi, the petitioner having admitted his liability, the period of limitation stands extended for a period of three years from the date of last of such admission. According to him, such admission can be by conduct or by expressed admission. Deposits are admission by conduct while letters are admission by expression. Therefore, according to him, the provisions of subsection (2) of Section 11A has to be construed either from 2441996 or from 1021997 and as such the period of three years would lapse earliest on 2441999 whereas the recovery certificate was issued on 152

1997. If expressed admission is taken into consideration, in that event, three years would expire on 1022000. Therefore, it is well within time. He secondly contends that since mode of recovery has been provided for in Section 11A, it is not open to the petitioner to contend that the amount cannot be recovered under the provisions of U.P.Z.A. L.R. Act, as arrears of land revenue. In as much as the 1973 Act has not provided any mode of recovery except that the same should be recovered as arrears of land revenue. For the reasons given on the first point, Mr. Chaturvedi contends that the question of limitation does not come into play at all.

I have heard both the Counsels at length. In paragraph 2 of the petition, the petitioner has contended that he had obtained a loan on 16111991 which was repayable in 18 half yearly installments. Thus, last date of repayment would be after six years namely in May, 1998 when 18 half yearly instalments would expire. The paragraph 4, the petitioner contends that he had deposited various amounts between March, 1992 and April, 1996. Thus, by no stretch of imagination it can be said that the recovery certificate was issued beyond three years since the last instalment was due sometime in 1998. As soon payments are made or admissions are expressed either by conduct or by expression, the period of limitation stands extended by virtue of Sections 18, 19 and 20 of the Limitation Act. Admittedly the petitioner by his letters as mentioned in paragraph 10 of the counteraffidavit has admitted the liability and promised to repay the amount which amounts to extension of limitation from the date of such admission or promise. It appears from the fact that last payment was made in April 1996 whereas the admission and promise was expressed through letter signed by the petitioner himself on 1021997. Thus, three years limitation as might have been contemplated in subsection (2) of Section 11 A, cannot have any impact.

Then again, the petitioner himself by his own conduct gave an impression to the Bank that he is admitting his liability and promising to repay the amount and he himself had prayed for time and created an impression that he will be repaying the amount. By virtue of his own conduct, he has kept the bank expecting that the amount would be repaid and thereby it stood in the way of sending a recovery certificate to the Collector. Thus, the petitioner''s own actions had compelled the Bank to remain inactive. Therefore, the petitioner does not appear to have come with clean hands. He is estopped from taking advantage of his own conduct, by which he had prevented the bank from invoking subsection (2) of Section 11Aof the 1973 Act. Therefore, it is not open to him to contend otherwise.

The 1973 Act has not provided anything to override the provisions of the General Act and particularly the Central Acts. The Limitation Act being a Central Act, the State Act cannot over ride if there is conflict between the provisions of two acts by virtue of Art. 254 of the .Constitution of India. Therefore, he cannot claim exemption of application of the provisions of Limitation Act in respect of recovery of the said amount. However, even Section 11A does not provide as to the consequence .of failure to comply with subsection (2) of Section 11A, inasmuch as it does not provide that in default, it would make the amount irrecoverable. The expression used in subsection (2) of Section 11A also does not lay down anything providing special limitation under the said Act. The said provision does not appear to be mandatory in the sense it has been expressed. If the legislature had intended the same to be mandatory and having overriding effect, in that event, adequate provision ought to have been provided therein itself. An examination of the scheme does not lead us to such an inference to interpret the said provision as mandatory having overriding effect over general provisions of the Limitation Act, a Union legislation. Then again the period of three years mention in the Section conforms to the provisions of the Limitation Act.

Then again subsection (3) of Section 11 A provides the mode of recovery of such amount under 1973 Act, which is to be recovered by the Collector as arrears of land revenue, the provisions whereof are provided in the U.P. Z.A.L.R. Act and the rules framed thereunder. Therefore, there cannot be any two opinion that the recovery proceedings can be proceeded with through the mode of recovery of arrears of land revenue as provided in U.P.Z.A. L.R. Act and the Rules framed thereunder.

As observed earlier, initiation of the recovery having not been illegal as found earlier, the contention of Mr. Verma that the recovery proceedings cannot be proceeded with, fails and is hereby overruled.

In that view of the matter, I am unable to agree with the contention of Mr. Verma. Therefore, this writ petition fails and is accordingly dismissed.

The property which have been secured or mortgaged, shall not be disposed of or dealt with in any manner. It would be open to the bank to recover the amount through auction of the properties of the petitioner. All properties of the petitioner shall remain attached until entire amount is recovered. However, it would be open to the petitioner, if so advised, to deposit the entire dues within a period of two months from date together with interest in the bank. If such deposit is made, in that event after the entire dues arc satisfied, the bank should not proceed with the recovery. In default, the recovery would proceed as directed hereinbefore.

This order, subject to preceding paragraph, shall remain in abeyance for a period of two months from this date in order to ascertain as to whether the petitioner, as directed in the preceding paragraph, has deposited the dues or not. The matter shall be put up as tied up before me on 14th July, 1990. On the next date, the petitioner if the entire dues are not cleared as directed above, will furnish statement in respect of all his properties including those he might have transferred or be transferring between March, 1992 and this date or till 14th July 1998, as the case may be.

As directed above, list this matter on 14th July, 1998 as tied up before me.