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HIGH COURT OF PATNA
A.K. Ganguly, J.
Satya Narain Jhunjhunwala - Petitioner
Vs.
The State of Bihar and others - Respondents
C.W.J.C. No. 1531 of 1986
Decided on: 9.8.1996
BIHAR & ORISSA PUBLIC DEMAND RECOVERY ACT, 1914 - SECTION 5(2), 11 - REQUISITION FOR CERTIFICATE - AMENDMENT - POWER OF CERTIFICATE OFFICER - LIMITATION - SIGNATURE AND VERIFICATION - MANDATORY REQUIREMENT - INHERENT POWER OF COURT - CANNOT BE INVOKED TO CURE DEFECTIVE REQUISITION.
Fact of the Case:
Petitioner challenged the validity of a certificate proceeding initiated by the State Bank of India for recovery of loans. The Bank filed a requisition for certificate before the District Certificate Officer without proper signature, verification, and court fee payment. Later, an amendment petition was filed to rectify the defects.
Finding of the Court:
The Court held that the requisition was not filed in accordance with the requirements of Section 5(2) of the Bihar & Orissa Public Demand Recovery Act, 1914, as it lacked proper signature, verification, and court fee payment. The Court further held that Section 11 of the Act, which allows for amendment of certificates, does not apply to the amendment of requisitions. The Court also rejected the Bank's reliance on Supreme Court judgments dealing with inherent powers of the Court, as those cases involved different statutory provisions and factual circumstances.
Issues: 1. Whether the requisition for certificate was valid in the absence of proper signature, verification, and court fee payment? 2. Whether Section 11 of the Bihar & Orissa Public Demand Recovery Act, 1914, allows for amendment of requisitions? 3. Whether the inherent power of the Court can be invoked to cure the defects in the requisition?
Ratio Decidendi: 1. Section 5(2) of the Bihar & Orissa Public Demand Recovery Act, 1914, mandates that requisitions for certificates be signed, verified, and accompanied by court fees. The requisition in this case lacked these essential elements, rendering it invalid. 2. Section 11 of the Act allows for amendment of certificates, but it does not extend to the amendment of requisitions. The power to amend requisitions is not explicitly provided under the Act. 3. The inherent power of the Court cannot be invoked to cure the defects in the requisition. The Court cannot go against statutory prescriptions or bypass mandatory requirements.
Final Decision: The Court quashed the impugned order allowing the amendment of the requisition and the entire certificate proceeding initiated on the basis of the invalid requisition. However, the Court clarified that this decision does not prevent the Bank from pursuing appropriate legal remedies for the recovery of its dues.
A.K. Ganguly, J. - This writ petition has been filed for quashing the entire certificate proceeding being Certificate Case No. 14-SBI/79-80 which was initiated on the requisition made by the respondent No.2, State Bank of India, Main Branch, Motihari, for recovery of the loans of the Bank from the petitioner.
2. The facts of the case are as follows:
In the year 1974 the petitioner obtained medium term loan granted by the State Bank of India, Main Branch, Motihari, pursuant to which a loan of Rs. 65,000/- was advanced to the petitioner for purchase of a Hindustan Bed Ford Mini Bus bearing registration No. BRE 6163. The petitioner's case is that apart from the said loan amount, the petitioner also invested a sum of Rs. 30,000/- from his own pocket.
3. Be that as it may, the petitioner could not refund the said amount which was taken by him from the respondent Bank. The petitioner has alleged various reasons for such non-payment. This Court does not want to go into those questions whether the petitioner is justified in not paying the amount which he obtained from the Bank by way of loan.
4. The case has been argued by the learned counsel for the respective parties only on the question of validity of the certificate proceeding.
5. On 15.5.1979 the Branch Manager of the respondent Bank filed a requisition before the District Certificate Officer, Motihari (respondent no. 3) for the recovery of the alleged loan amounting to Rs. 91,293.76 P, a copy of the said requisition has been disclosed as Annexure-2 to this writ petition. Thereafter on the basis of the said requisition filed before the District Certificate Officer, Motihari, on 21.5.1979 a certificate case being Certificate Case No. 14-SBI/79-80 was registered.
6. The main ground on which the case has been argued by the learned counsel for the petitioner is that there is no requisition in the eye of law. In support of this submission, the petitioner's counsel has relied upon Section 5 of the Bihar & Orissa Public Demand Recovery Act, 1914 (hereinafter referred to as the said Act). Section 5 of the said Act provides for filing requisition for certificate in cases other than payment of public demand to the Collector. In this case reliance has been placed by the petitioner's counsel on subsection (2) of Section 5 of the said Act in order to contend that the certificate has not been issued in accordance with the requirement of sub-section (2) of Section 5 of the said Act. Sub-section (2) of Section 5 of the said Act is set out below:
"Every such requisition shall be signed and verified in the prescribed manner, and, except in such cases as may be prescribed, shall be chargeable with a fee of the amount which would be payable under the Court-fees Act, 1870 (VII of 1870) in respect of a plaint for the recovery of a sum of money equal to that stated in the requisition as being due."
7. With reference to Annexure-2 which is undoubtedly requisition in this case, learned counsel for the petitioner submitted that the said requisition has not been signed and verified in the prescribed manner and no court fees has been paid on the said requisition. The word 'prescribed' has been defined in sub-section (5) of Section 3 of the said Act which means 'prescribed by rules'. Rule I of Schedule II of the said Act provides for signature and verification of requisitions of such certificate. Said Rule I of Schedule II of the said Act is set out below:
"(1) Every requisition made under Section 5 shall be signed and verified at the foot by the person making it, or by some other person on his behalf who is proved to the satisfaction of the Certificate Officer to be acquainted with the facts of the case.
(2) The verification shall state that the person signing the requisition has been satisfied by enquiry that the amount stated in the requisition is actually due.
(3) The verification shall be signed by the person making it, and shall state the date on which it is signed."
8. It is an admitted position that in t
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