Advocates:
['RAM CHANDRA YADAV', 'C S C', '', 'ABHISHEK MISHRA']

Reserved

Court No. - 32

Case :- WRIT - C No. - 7459 of 2021

Petitioner :- Ashok Kumar

Respondent :- State Of U.P. And 2 Others

Counsel for Petitioner :- Ram Chandra Yadav

Counsel for Respondent :- C.S.C., Abhishek Mishra

Hon'ble Rohit Ranjan Agarwal,J.

Heard Sri R.C. Yadav, learned counsel for the petitioner,

learned Standing Counsel for respondent no. 1 and Sri

Abhishek Mishra, learned counsel for the respondent nos. 2 and

3-Bank.

This writ petition has been filed seeking quashing of the

citation dated 28.01.2021 as well as entire recovery

proceedings.

Facts, as narrated, in the writ petition are that petitioner

had taken a loan of Rs. 1,00,000/- from U.P. Sahkari Gram

Vikas Bank Ltd. (hereinafter referred as 'Bank') in the year

2008. As the said amount could not be repaid, the account was

declared as NPA. Petitioner has challenged the citation issued

by the recovery officer under Section 92 (a) of U.P.

Cooperative Societies Act, 1965 (hereinafter referred as 'Act of

1965') on the ground that recovery certificate, which has been

issued under Section 95 (A) of the Act of 1965, no opportunity

of hearing was given by the Registrar before sending the same

to be executed.

It is contended by learned counsel for the petitioner that

once application was made by the Bank before the Registrar

under Section 95 (A) of the Act of 1965 for recovery of arrears

of loan, Registrar before issuing recovery certificate should

have held an inquiry, and principle of natural justice required

the petitioner to show cause before the Registrar issued

recovery certificate to the Collector. Reliance has been placed

upon the Division Bench judgment of this Court in case of

Beedha Singh Vs. District Registrar, Cooperative Societies,

Mathura and Others, 1986 AWC 552 and Ram Narayan Himmat

Ram and Another Vs. Kray Vikray Sahkari Samiti Ltd. Jalaun

and Others, 1986 AWC 273.

Sri Abhishek Mishra, learned counsel appearing for the

respondent Bank, submitted that several reminders were given

to the petitioner for deposit of outstanding loan and when

petitioner failed to comply with the said notice application was

made to the Registrar for issuance of recovery certificate and

after issuance of same the order passed by the Registrar under

Section 95 (A) has been executed under Section 92 of the Act

of 1965. He further contended that petitioner has not

challenged the recovery certificate in the present case and only

consequential proceedings issuing citation is under challenge,

the same is not maintainable and has relied upon a decision of

Division Bench of this Court in case of Sukh Lal Vs. State of

U.P. and Others 2011 (1) ADJ 839 (DB) and decision in case of

Harish Chandra Vs. U.P. Sahkari Gram Vikas Bank Ltd. and

Others, 2011 (5) ADJ 389 (DB).

I have heard learned counsel for the parties and perused

the material on record.

The question which emerges for consideration is whether

the proceedings for recovery can be initiated under Section 95

(A) of the Act of 1965 without calling upon the petitioner who

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was granted loan for recovering the amount by the Registrar,

without affording any opportunity of hearing and directing the

same to be executed under Section 92 (a) of the Act of 1965.

Before proceeding, a glance of Section 92 and 95(A) are

necessary for better appreciation of the case, which are

extracted here as under;

“92. Execution of certain orders and awards.- Every award

made under Section 71, and capable of execution in the

manner provided below, and every order so capable of

execution made by Registrar under Section 67 or sub-section

(2) of Section 68 or under Section 91, or by the liquidator

under Section 74 or by an appellate authority on appeal under

Section 97 or 98 or on review under section 99 or as an

interlocutory order under Section 100 [or a certificate for

recovery issued under section 95-A] shall, if not carried out,

be executed-

(a