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SUPREME COURT OF INDIA
M.N.Venkatachaliah : N.P.Singh : P.B.Sawant
Shyam Singh
Versus
Collector, District Hamirpur, U.P.
Case No. : 3966 of 1992
Date of Decision : 9/25/92
Civil Procedure Code ,1908 - Section 51 - Order 21 - Rule 30(e) - U.P. Agricultural Credit Act, 1973 - Section 10-B - Amount payable - Quash - This was objected to on behalf of appellant saying that first sale proceeds of tractor be adjusted and steps for sale of agricultural land be taken only thereafter - It was pointed out on behalf of appellant to authorities concerned that they themselves had fixed estimated value of tractor had shown total amount payable by appellant - This amount included expenses of recovery at rate of per cent - Amount which was actually pay- Cable was only - This plea was rejected by Revenue - Thirties as well as by High court – Held, On behalf of appellant it was urged that in view of fact that it is an admitted position that tractor in question was attached and removed from custody of appellant by power Section Act it shall be deemed that appellant has been absolved from his liability to pay amount in question to Bank - Reliance in this connection was placed on Full Bench judgment in case of Jai Infar - Where it was held that if property which came into hands receiver appointed by court and which was to be sold by him for purpose of making payments decree holder had been mishap appropriated by him loss must be borne by decree holder and judgment debtor is absolved of liability to pay to decree holder - In that connection reference was also made judgment of Madras High court in case - Judgment of appellate court of same case - On But that view did not find favor with Privy council in case Jai Bah - Judgment of Full bench of Oudh court was reversed saying that decree had payment to receiver was at judgment debtors risk as such decree holder can enforce charge - Whatever may be said in connection with an execution proceed provisions of said Code according to us analogy may not be apposite where recovery proceedings are statutory and creditor is itself State or as here an authority within meaning Article of Constitution - Tractor in question was seized and removed in accordance with statutory provision - Right of Bank to follow one or other modes separately or simultaneously for realization of dues has to be recognized - But that right does not extend to extent of selling different moveable or immovable properties of debtor different provisions and through different procedures without ascertaining whether amount due has already been realized by sale of property already attached in proceedings which were initiated for purpose - Court should on facts and circumstances of particular case decide as to whether simultaneous proceedings should be permitted against debtor for realization same amount - It is true while exercising such discretion court has to be conscious of fact that debtors are generally interested in delaying realization debts – Order Accordingly
Judgment
N.P. SINGH, J.
(1) SPECIAL leave granted.
(2) THIS appeal is against an order passed by the High court dismiss- ing the writ application filed on behalf of the appellant for quashing the proceedings initiated by the respondents for sale of 22 acres of land which had been mortgaged in favour of the State Bank of India (hereinafter referred to as the Bank) in connection with a loan amount- ing to Rs. 34,000.00 advanced to the appellant in the year 1972 for purchase of a tractor. The tractor so purchased had been hypothecated with the Bank.
(3) ON various dates the appellant paid Rs. 11,500.00 towards the instal- ments and the interest in respect of the aforesaid loan. In July 1977, the Bank approached the concerned Tehsildar for recovery of Rs. 44,872.60 the outstanding amount till that date in accordance with the procedure prescribed by Section 10-B of the U.P. Agricultural Credit Act, 1973. The Tehsildar initiated recovery proceedings and pursuant to an order passed by him on 16/12/1977, the aforesaid tractor was attached and was taken away from the custody of the appellant on 26/12/1977. From the recovery proceedings of Tehsildar it appeared that inter- est up to 7/07/1977 had been recovered and the total amount due was Rs 40,793.29. In the column meant for estimated value for the tractor, it was mentioned as Rs. 46,146.36. In other words the estimated value of the tractor mentioned in the recovery proceedings was more than the to- tal amount due.
(4) ON or about 24/07/1981, a proceeding was initiated under Sec- tion 11-A of the aforesaid Act for recovery of the same amount and a notice was issued under Section 279 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 giving the details of 22 acres of the lands which were going to be sold for non-payment of the amount advanced along with interest. This was objected to on behalf of the appellant saying that first the sale proceeds of the tractor be adjusted and steps for sale of the agricultural land be taken only thereafter. It was pointed out on behalf of the appellant to the authorities concerned that they themselves had fixed the estimated value of the tractor on 7/07/1977 to be Rs. 46,146.36 and had shown the total amount payable by the appellant at Rs. 44,872.60. This amount of Rs. 44,872.60 included Rs. 4,079.33 as the expenses of recovery at the rate of 10 per cent. The amount which was actually pay- able was Rs. 40,793.29 only. This plea was rejected by the Revenue Au- thorities as well as by the High court.
(5) THE U.P. Agricultural Credit Act, 1973 (hereinafter referred to as the Act) has been enacted for making "provisions to facilitate adequate flow of credit for agricultural production and development through banks and other institutional credit agencies and for matters connected therewith or incidental thereto". The definition of "agricultural purpose" in Section 2(a)(ii) includes the acquisition of implements and machinery in connection with any such activities and shall include purchase of a tractor. The definition of Bank shall include the respondent-Bank. The financial assistance means "assistance by way of loan, advance for afore- said agricultural purposes". Ch. III contains the provisions regarding charges and mortgages in favour of banks and their priorities. Chapter IV provides the procedures for recovery of dues by banks. S. 10-B, 11 and 11-A are relevant.
"10-B. Distraint and sale of produce and movables.- (1 Where any sum in respect of any financial assistance granted to an agricul- turist remains unpaid on the date on which it falls due, the bank granting the financial assistance may apply to the Tehsildar having jurisdiction for the recovery of the sum due, together with expenses of recovery, by distraint and sale of the movable property or the crop or other produce charged in favour of the bank.
(2 The provisions of the Limitation Act, 1963, shall apply in relation to an applica
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