The main legal point established in the judgment is that the word 'person' in the Recovery of Debts Due to the Bank and Financial Institution Act, 1993 cannot be given a restricted meaning to exclude the State for the purpose of recovery of debt, especially when the State was allowed to stand as surety/guarantor.

This writ petition under Articles 226 and 227 of the Constitution has been filed by the State of Assam for issuance of a direction in the nature of certiorari for quashing the proceeding in O.A. 137/97 pending before the Debt Recovery Officer, Guwahati, hereinafter referred to as the Tribunal and also for a direction in the nature of mandamus against the recovery officer not to proceed against the writ petitioner for realisation of the amount.

2. The relevant facts are that respondent M/s. Everest Cycle Ltd., Gopinath Nagar, Guwahati obtained commercial loan from the respondent State Bank of Binaker and Jaipur to the tune of Rs. 10,00,000/-. The present writ petitioner stood as surety in respect of the said loan. As the respondent failed to repay the loan the Bank instituted Title Suit No. 22/97 and 22/98. The said suits were decreed ex parte as the present writ petitioner as well as the borrower chose not to contest the proceedings. The suit was decreed by the Asstt. District Judge No. 1 at Guwahati and thereafter Title Execution Case No. 5/82 was instituted in the said Court for realisation of the amount. During the pendency of the said Execution Proceeding the Recovery of Debts Due to the Bank and Financial Institution Act, 1993, for short the Act, came into force with effect from 26-4-93. In view of the provisions contained in Section 31 of the Act, the said Title Execution Case No. 22/98 was transferred to the Tribunal.

3. Before the Tribunal the State of Assam raised a preliminary objection stating, inter alia, that the amount cannot be recovered by the Tribunal from the State as the said Act is not applicable in respect of the State. It was submitted that the State of Assam is not a person under Section 19 of the Act. The learned Presiding Officer of the Tribunal heard the matter and vide the impugned order dated 3-12-98 rejected the contention of the writ petitioner and directed to issue a recovery certificate for Rs. 13,91,854.98 paise together with interest. Hence the present writ petition.

4. I have heard Mr. P. G. Barus, learned Advocate General, Assam and Mr. N. M. Sarmah, learned counsel for the respondent Bank.

5. Section 19(1) of the Act reads as follows :

"Where a bank or a financial institution has to recovery any debt from any person, it may make an application to the Tribunal within the local limits of whose jurisdiction,-

(a) the defendant, or each of the defendants where there are more than one, at the time of making application, actually and voluntarily resides, or carries on business, or personally works for gain; or

(b) any of defendants, where there are more than one, at the time of making the application, actually and voluntarily resides or carries on business, or personally works for gain; or

(c) the cause of action, wholly or in part, arises."

6. Learned Advocate-General Shri Barua has submitted that State of Assam is not a person as stated in Section 19 of the Act and as such, the above Act is not applicable for recovery of the amount by the Tribunal. Referring to Article 12 of the Constitution it is stated that there is a distinction between the State and a person and the Civil Court could have proceeded against the writ petitioner but so far the jurisdiction of the Tribunal is concerned, it is limited to a person as stated in Section 19 of the act. The word person has not been defined in the Act.

7. The Dictionary meaning of person as described in Blacks Law Dictionary, 5th Edition reads as follows :

"Person.- In general usage, a human being (i.e. natural person), though by statute term may include a firm, labour organizations, partnerships, associations, corporations, legal representatives, trustees, trustees in bankruptcy, or receivers. National Labour Relations Act. Bankruptcy Act. Person includes individual, partnership, and corporation, but not governmental unit."

8. In support of his submission learned Advocate General has referred to a recent decision of the Apex Court in the case of Krishn