Failure to rebut detailed counter affidavit and absence of valid challenge to recovery citation led to the dismissal of the writ petitions.

K.M. Joseph, J.

1. Since common issues are raised in both these appeals, we are disposing of the same by this common judgment. We take Special Appeal No. 911 of 2017 as the leading case. The facts are substantially the same. Appellants are the writ petitioners. The writ petitions were filed seeking the following reliefs:

“(a) to issue a writ, order or direction in the nature of certiorari quashing the impugned recovery citation dated 2.6.2010 issued by the respondent No. 2, Tehsildar Gadarpur, Udham Singh Nagar (Annexure No. 6) to this writ petition,

(b) to issue a writ, order or direction in the nature of mandamus commanding the respondents not to initiate the recovery proceedings adopting the coercive measures against the petitioner.”

2. Briefly put, the case of the writ petitioner is as follows:

The writ petitioner is a senior citizen. He is a completely illiterate person. He earns his bread and butter by his little farming. It is his case that certain persons, who were running a N.G.O., namely, Chitransh Herbal Group met the writ petitioner and proposed him for cultivation of herbal plants and they also assured the writ petitioner that they will cooperate for getting loan from the Bank i.e. the third respondent-Bank. The writ petitioner alleges that being an illiterate person, he believed on the assurance of the N.G.O. because they gave attractive and huge profitable offers. The writ petitioner also produced his guarantor before the Bank, which was required for getting loan. Later, it is stated that the writ petitioner visited the Bank and the Office of the N.G.O. and they assured the writ petitioner that the process of getting loan is going on. It is stated that the loan was sanctioned and the entire amount was given to Chitransh Herbal Group, who will give herbal plants for cultivation, so the writ petitioner was waiting for the same. There is reference to recovery citation dated 15.12.2009 against the writ petitioner and the guarantor. It is alleged to be a complete conspiracy as the writ petitioner was cheated by the N.G.O. in collusion with the third respondent-Bank. Thereafter, there is reference to representations. There was an inquiry conducted by the Naib Tehsildar, who gave his report, in which he clearly stated that the writ petitioner is innocent and he has not got a single penny as the loan amount. There is also reference to Annexure No. 4, which purports to be the concluding Report of the Tehsildar, Gadarpur. The recovery citation was withdrawn against the writ petitioner. The recovery citation was taken back on his order. It is, subsequently, that Annexure No. 6 recovery citation dated 2.6.2010 (which is the impugned proceeding) came to be issued. It is stated that the writ petitioner was running from pillar to post to secure the ends of justice; but after failing the writ petitioner filed an application under Section 156(3) of Cr.P.C. before the Chief Judicial Magistrate, Rudrapur for lodging the F.I.R. and the writ petitioner is still waiting for justice. Thereafter, it is stated as follows:

“17. That all of a sudden with the shock and surprise of the petitioner when he got a recovery citation, the recovery citation has been issued directly without any prior notice or information for the recovery of the aforesaid loan. Prior to the issuance of recovery citation the petitioner should have been given the notice for information by the respondent authority, but it was not done, which has added to the difficulty of the petitioner.

3. As against this, the third respondent has filed a counter affidavit. Therein, the case is mat the loan was taken by the writ petitioner. It is, inter alia, stated as follows:

“5. That apart from this it is vital to mention here mat the petitioner had from a competitive market available for assisting and providing herbal plants had himself chosen and introduced to the Bank the “Chitransh Herbal Group”, Dharaia, Rampur Road, Haldwani, District Nainital, Uttarakhand. This agency respo