Sikhar Sikshit Berojgar Motor Pariwahan Co-operative Society Unlimited vs State of Bihar and Others

The Petitioner has challenged the maintainability of the impugned proceeding under the Bihar Public Demands Recovery Act (''the Act'' in short). According to it, in the absence of any agreement between the parties that the dues in question can be recovered as a public demand under the said Act, the requisition sent by the Respondent-Bank and the institution of the proceeding on that basis are without jurisdiction.

In the State of Bihar prior to 1974 the bank dues were recoverable through suits in the civil courts. By Bihar Act 7 of 1974 a new item, viz, item 15 was added in the schedule to the Act by reason of which any money payable to State Bank of India and other banks specified in column (2) of the first schedule to the Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970 was made recoverable as public demand. Since the controversy hinges on the interpretation of the said item it would be useful to quote the relevant part thereof as under:

Any money payable to-

(i) State Bank of India constituted under the State Bank of India Act, 1955 (Act 23 of 1955); or

(ii) ****

(iii) ****

(iv) ****

in respect of which the person liable to pay the same has agreed, by a written instrument that it shall be recoverable as public demand.

It may be mentioned here that the term ''public demand'' has been defined u/s 3(6) of the Act to mean "any arrear or money mentioned or referred to in Schedule I, and includes any interest which may, by law, be chargeable thereon upto the date on which a certificate is signed under part II". There is no dispute that in terms of item 15 of the Schedule (supra) the bank dues can be recovered through certificate proceedings under the said Act if the person liable to pay the money has agreed that the same shall be recovered as a public demand. According to the Petitioner, however, the words "has agreed, by a written instrument" refer to the main agreement under which the loan is granted. The question for consideration is whether the expression ''instrument'' means the instrument or document under which loan is granted or it includes a subsequently executed document also. Admittedly, the members of the Petitioner-society have signed undertaking vide Annexure-A to the counter affidavit that the dues can be recovered as public demand under the Act.

As stated above, ordinarily any money due to the bank of the like mentioned in item 15 is recoverable by filing suit in the civil courts. This, in fact, was the only mode permissible prior to 1974. By virtue of the amended provisions the dues now can also be recovered through certificate proceedings but only if the person concerned has agreed by written instrument in regard to its recoverability by the said mode. The word ''agreed'' or agreement in the context, in our opinion, means readiness or consent of the person concerned reagarding the said alternative mode of recovery. The only thing is that the consent must be in writing. Grant of loan carries with it the liability of repayment. Grant of loan is one thing. Mode of enforcement of the liability is another. If the loan is to be realised by the ordinary mode of recovery through suit in the civil court no separate stipulation needs be made in the agreement nor any separate agreement needs be entered into. The right to recover the amount of loan through suit in the civil court is implicit and protected by the general law of the land. However, if the recovery is to be effected by taking recourse to a special mode or proceeding which may be advantageous to the creditors but disadvantageous to the debtors in many respects, this can be done only if the person has expressed his readiness or consent to that effect. Since mode of recovery is independent of the liability to repay the loan, which may be varied, it is obvious that the same can be agreed upon later also by another instrument.

Counsel for the Petitioner has contended that such as instrument must be bilateral i.e. entered into by both the parties, and any unilateral declaration like the one made in Annexure-A to the counter affidavit cannot be termed as instrument. The term ''instrument'' has not been defined in the Bihar Public Demands Recovery Act or The General Clauses Act. The term however, has been defined u/s 2(14) of the Indian Stamp Act, 1899 to include "every document by which any right or liability is, or purports to be created, transferred, limited, extended, extinguished or recorded". The same definition is found u/s 2(k) of the Notaries Act, 1952. There is nothing to suggest that the instrument must be inter parte transaction. In our opinion, the term has different shades of meaning and whether any document unilaterally created by the party can also be said to be instrument or not depends on the context. There are several decisions where the Courts have taken the view that the documents unilaterally executed by a person such as will, are also instruments creating rights and liabilities. In our opinion, in the context of the Bihar Public Demands Recovery Act the term means consent of readiness on the part of the person concerned and, therefore, even unilateral declaration in writing made by him to the above effect would amount to instrument.

Counsel for the Petitioner placed reliance on a few decisions of this Court, namely, 1989 BLJ 12 : 1989 PLJR 254 and 1980 BBCJ 344. In the former case, the question as to whether the ingredients of item 15 where made our or not had not been gone into by the Certificate Officer. This Court directed him to examine the matter. In the latter, the point was not even remotely in issue. The decisions, therefore cannot be said to be relevant to the point in issue in this case.

For the reasons stated above, we do not find any merit in the contention. This writ petition is accordingly, dismissed.