Allowed

Manmohan Mishra v. State of U.P. and 4 Others

Allahabad HC29 Sept 2021WRIC/16344/2021

Case brief

AI extract

What is this about?

The Court held that recovery proceedings for an agricultural loan initiated under the Uttar Pradesh Public Moneys (Recovery of Dues) Act, 1972 were beyond jurisdiction. The special provisions of the Uttar Pradesh Agricultural Credit Act, 1973, which protect agriculturists, prevail over the general recovery act.

What did the court decide?

The recovery certificate dated 29.06.2019 and attachment notice dated 14.01.2020 issued under the UP Public Moneys (Recovery of Dues) Act, 1972 are set aside.

Manmohan Mishra Vs State of U.P. and 4 Others — Banking and Recovery | Allahabad HC (2021)

¶1

¶2

Court No. - 18

¶3

Case :- WRIT - C No. - 16344 of 2021

¶4

Petitioner :- Manmohan Mishra Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Jagannath Singh,Mahendra Pratap Singh Counsel for Respondent :- C.S.C.,Brahmanand Singh

¶5

Hon'ble Ajay Bhanot,J.

¶6

Heard Sri Jagannath Singh, learned counsel for the petitioner, learned Standing Counsel for the respondents No.1 to 4 and Sri Brahmanand Singh, learned counsel for the respondent No.5/Bank.

¶7

The petitioner has assailed the recovery certificate dated 29.06.2019 issued by the respondent No.5-Bank under the Uttar Pradesh Public Moneys (Recovery of Dues) Act, 1972 and attachment notice dated 14.01.2020 issued by the respondent No.3 and consequential proceedings taken under the Uttar Pradesh Public Moneys (Recovery of Dues) Act, 1972.

¶8

The sole contention of Sri Jagannath Singh, learned counsel for the petitioner is that the recovery proceedings taken out under the Uttar Pradesh Public Moneys (Recovery of Dues) Act, 1972 are beyond jurisdiction. The applicant had taken an agricultural loan. The loan comes within the ambit of Uttar Pradesh Agricultural Credit Act, 1973 (hereinafter referred to as 'Agricultural Credit Act). The scheme of recovery under the Uttar Pradesh Agricultural Credit Act, 1973 is distinct from the mode of recovery prescribed under the Uttar Pradesh Public Moneys (Recovery of Dues) Act, 1972.

¶9

¶10

Sri Brahmanand Singh, learned counsel for the respondent No.5/Bank does not dispute the aforesaid fact.

¶11

Learned Standing Counsel submits that once the bank admits that the loan is not covered under the Uttar Pradesh Public Moneys (Recovery of Dues) Act, 1972, the State cannot take a different stand in the matter.

¶12

Heard learned counsel for the parties.

¶13

On facts it could not be disputed that the disputed loan is an agricultural loan within the ambit of Uttar Pradesh Agricultural Credit Act, 1973.

¶14

The Uttar Pradesh Agricultural Credit Act, 1973 was enacted with a view to facilitate adequate flow of credit for agriculture production and development through banks and other institutional credit agencies and for matters connected therewith. A large part of citizenry of the State derive their livelihood from agriculture. The legislature was sensitive to their pecuniary conditions and economic hardships faced by them.

¶15

The manner of recovery of agricultural loan has been set out in comprehensive detail in the Uttar Pradesh Agricultural Credit Act, 1973 read with Uttar Pradesh Agricultural Credit Rules, 1975.

¶16

Many of the features in the Uttar Pradesh Agricultural Credit Act, 1973 are distinct from the provisions of the Uttar Pradesh Public Moneys (Recovery of Dues) Act, 1972. Some of the provisions in the Uttar Pradesh Agricultural Credit Act, 1973

¶17

¶18

(hereinafter referred to as 'the Agricultural Credit Act') read with Uttar Pradesh Agricultural Credit Rules, 1975 (hereinafter referred to as 'the Rules'), which ameliorate the conditions of the agriculturists and are not part of the Uttar Pradesh Public Moneys (Recovery of Dues) Act, 1972), are discussed below.

¶19

The Uttar Pradesh Agricultural Credit Act, 1973 defines “agriculture” and “agriculturist” and reads as under:

¶20

“ Section 2. Definitions .-In this act unless the context otherwise requires---“(a) agriculture’ and ‘agricultural purpose’ includes making land fit for cultivation, cultivation of land improvement of land (including development of sources of irrigation), raising and harvesting of crops, horticulture, forestry cattle breeding, animal husbandry, dairy farming, piggery, poultry farming, seed farming, pisciculture, apiculture, sericulture and such other activities as are generally carried on by persons engaged in any of the aforementioned activities and also includes-

¶21

(i) marketing of agricultural products, their storage and transport;

¶22

(b)"agriculturist" means a person who is engaged in agriculture.”

¶23

The other relevant Sections 2(c), 2(e) and 2(g) of the definition clauses of the Act of 1973 are extracted below:

¶24

"Section 2(c) 'bank' means-

¶25

(iv) a corresponding new Bank constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (Act V of 1970);

¶26

Section 2(e) "financial assistance" means assistance [granted, whether before or after the commencement of this Act] by way of loan, advance, guarantee or otherwise (i) either to an agriculturist for agricultural purposes or (ii) to a Co-operative Society for enabling it to grant loans and advances to its members for agricultural purposes;

¶27

Section (g) "prescribed" means prescribed by rules made under this

¶28

¶29

Act."

¶30

Rights of agriculturists to alienate the land or interest in land in favour of banks is provided in Chapter II of the Act of 1973. Sections 3 and 4 of the Act of 1973 being germane are reproduced hereunder:

¶31

" Section 3 . The State Government may by notification in the Gazette, vest, subject to such restrictions as may be specified in the notification, all bhumidhars, [* ] asamis and Government lessees, with rights of alienation in land held under their tenure or any interest in such land including the right to create a charge or mortgage or such land or interest in favour of banks generally or any specified class of banks for the purpose of obtaining financial assistance from such banks, and upon issue of such notification, such bhumidhars, [*] asamis and Government lessees shall, notwithstanding anything contained in any law for the time being in force or in any contract, grant or other instrument to the contrary, or any custom or tradition, have a right of alienation in accordance with he terms of the notification.

¶32

Section 4. Charge on crop and other movable property in favour of a bank .-(1) It shall be lawful for an agriculturist to create a charge on the moveable property owned by him or on the crops raised by him standing or otherwise or other produce from land cultivated by him, to the extent of his interests therein, in favour of a bank to secure financial assistance from that bank, notwithstanding that he may not be owner of the land [on and from which such crop or produce is raised.

¶33

(2) Notwithstanding anything to the contrary in [* **]4 the Uttar Pradesh Co-operative Societies Act,1965 or any other law for the time being in force, no charge in respect of any debt or other cut-standing demand due to a co-operative society from an agriculturist shall have priority over a charge on the crop raised by him, standing or otherwise, or any other movable property in respect of any financial assistance given to him by a bank provided the financial assistance made by the bank is prior in point of time to the debt or demand of the co-operative society. "

¶34

The manner creation of charge on land in favour of a bank by declaration of an agriculturist is provided in Section 6 of the Act of 1973, is of critical importance to

¶35

¶36

the controversy speaks thus:

¶37

" Section 6. Creation of charge on land in favour of a bank by declaration .-An agriculturist desirous of securing financial assistance from any bank by creating a charge on land or any other immovable property which he owns or in which he has an interest may make a declaration on a duly stamped paper in the form set out in the Schedule or as near thereto as circumstances permit, declaring that thereby he creates in favour of the bank a charge on such land or his Interest therein or other immovable property, as the case may be.]

¶38

(2) A declaration made under sub-section (1) may be varied from time to time by the agriculturist with the consent of the bank in chose favour the declaration has been made."

¶39

Section 6-A of the Act of 1973 deals with transfer charge or mortgage to land allotted during consolidation operation:

¶40

" Section 6-A. Transfer of charge or mortgage to land allotted during consolidation operation .-Where any land held by an agriculturist is subject to a charge or mortgage created in favour of a bank by an agriculturist and the rights title and interest of the agriculturist in the said land have ceased as a result of the enforcement of the final consolidation scheme under Chapter IV of the U. P. Consolidation of Holdings Act, 1953, such charge or mortgage shall be transferred, and attached to the corresponding land allotted to the agriculturist and to the compensation, if any, payable under the said scheme."

¶41

Section 7 of the Act of 1973 removes disability in creation of charges and mortgages and reads so:

¶42

" Section 7. Removal of disability in creation of charges and mortgages .- Notwithstanding anything contained in the Uttar Pradesh Co-operative Societies Act, 1965 and Uttar Pradesh Co-operative Lana Development Bank Act, 1964] or any other law for the time being in force and notwithstanding that any land or interest therein stands already charged or mortgaged to a co-operative society, it shall be lawful for an agriculturist to create a charge or mortgage on such land or interest therein in favour of a bank as security for any financial assistance given to the agriculturists by that bank."

¶43

¶44

Specific provisions for registration of charges and mortgage in favour of banks are also provided in Section 9 and the registration of discharge certificates is contemplated in Section 9(b) of the Act of 1973:

¶45

"Section 9. Registration of charges and mortgage in favour of banks .- (1) Notwithstanding anything contained in the Registration Act, 1908, a charge in respect of which a declaration has been made under sub-section (1) of section 6 or in respect of which a variation has been made under subsection (2) of that section, or a mortgage of any land or interest therein or other immovable property executed by an agriculturist in favour of a bank in, respect of financial assistance given by that bank shall be deemed to have been duly registered in accordance with the provisions of that Act with effect from the date of execution of such charge, variation or mortgage, as the case may be, provided the bank has sent to the Sub-Registrar within the local limits of whose jurisdiction the whole or any part of the property charged or mortgaged is situate within a period of one month from the date of such execution by registered post acknowledgement due, a copy of the document creating of such charge, variation or mortgage duly certified to be a true copy by an employee of the bank authorized to sign on its, behalf and the Sub-Registrar has filed it in Book No. 1 prescribed under section 51 of the Registration Act, 1908.

¶46

(2) The Sub-Registrar shall, as soon as may be, on receipt of the copy of the document referred to in sub-section (1), and after ascertaining that said document is duly stamped, file the copy in Book No.1 prescribed under section 51 of the Registration Act, 1908.

¶47

(3) Where the Sub-Registrar is of the opinion that the said document is not duly stamped or suffers from any defect arising out of an accidental slip or omission, he shall send back the copy of the document to the bank requiring it to get the deficiency in the stamp duty made good on the original or to get the defect removed within thirty days or within such extended time as he sub-Registrar may allow in that behalf.

¶48

(3-A) The bank shall get the deficiency made good or the defect removed, notwithstanding anything contained in the Indian Stamp Act, 1899.]1

¶49

(4) After the deficiency in stamp has been made good [or as the case may be the defect has been removed]1 the Bank shall send the copy of the document again to the sub-Registrar in the manner laid down in sub-section

¶50

¶51

(1) and thereupon the sub-Registrar shall file the copy in Book No. 1 in accordance with the provisions of sub-section (2).

¶52

(5) Notwithstanding anything contained in the Registration Act, 1908, it shall not be necessary for the agriculturist or any office of the bank to appear in person or by agent in any registration office in any proceeding connected with the registration of the document or to sign as provided in section 58, of the said Act.

¶53

Section 9-B. Registration of discharge certificates .-Where any declaration or variation in respect of a charge, or mortgage of any land or interes therein or other immovable property has been registered in accordance with section 9 and the amount of financial assistance secured hereby has been paid to the bank or the debt has been otherwise discharge, the bank shall issue a certificate to that effect and the provisions of the said section shall issue a certificate to that effect and the provisions of the said section shall mutatis mutandis apply to the registration of such certificate."

¶54

The manner of distraint and sale of produce and movables is provided in Section 10-B of the Act of 1973.

¶55

"Section 10-B. Distraint and sale of produce and movables .-(1) Where any sum in respect of any financial assistance granted to an agriculturist remains unpaid on the date on which it falls due, the bank granting the financial assistance may apply to the Tahsildar 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.

¶56

(2) The provisions of the Limitation Act, 1963, shall apply in relation to an application under sub-section (1), as if such application were a suit in a civil court for sale of the movable property for enforcing recovery of the sum referred to in that sub-section.

¶57

(3) On receipt of an application under sub-section (1) the Tahsildar or any other official authorized by him may, notwithstanding anything contained in any other law for the time being force, take action in the manner prescribed for purposes of distraining and selling the property referred to in that subsection.

¶58

(4) Any sum, so recovered shall be transferred to the bank after deducting the expenses of recovery and satisfying the Government dues or other prior charge, if any."

¶59

¶60

Another important feature affords an enhanced protection to agriculturists is the manner of recovery of dues of a bank through a prescribed authority and is provided in Section 11 of the Act of 1973 which is extracted hereunder:

¶61

"Section 11.Recovery of dues of a bank through a Prescribed Authority.- (1) Notwithstanding anything contained in any law for the time being in force, an officer specified by the State Government by notification in the Gazette (hereinafter referred to as the prescribed authority) may, on the application of a bank by order, direct that any amount due to the bank on account of financial assistance given to an agriculturist be paid by the sale of the land and or any interest therein or other immovable property which is charged or mortgaged for the payment of such amount :

¶62

Provided that no order of sale shall be made under this sub-section unless the agriculturist has been served with, a notice by the prescribed authority calling upon him to pay the amount due.

¶63

(1-A) The provisions of the Limitation Act, 1963 shall apply in relation to an application under sub-section (1), as if such applications were a suit in civil court for sale of the land or interest therein or other immovable property for enforcing recovery of the sum referred to in that sub-section.

¶64

(2) An order passed by the prescribed authority shall, subject to the result of appeal under section 12, be final and be binding on the parties.

¶65

(3) Every order passed by the prescribed authority in terms of sub-section (1) or by the appellate authority under section 12 shall be deemed to be a decree of a civil court and shall be executed in the same manner as a decree of such court by the civil court having jurisdiction.

¶66

(4) [* * * * ]

¶67

Section 11-A. Recovery in the case of personal security.- (1) Where any amount of financial assistance is .granted by a bank to an agriculturist and the agriculturist fails to pay the amount together with interest on the due date, then without prejudice to the provisions of sections 10-B and 11, the local principal officer of the bank by whatever name called may forward to the Collector a certificate in the manner prescribed specifying the amount due from the agriculturist.

¶68

(2) The certificate referred to in sub-section (1) may be forwarded to the

¶69

¶70

Collector within three years from the date when the amount specified in the Certificate fell due."

¶71

Section 12 of the Act of 1973 contemplates an appeal against any order passed by the Prescribed Authority. Under this provisions agriculturists can appeal orders in recovery proceedings.

¶72

"Section 12.Appeal -(1) Any party aggrieved by an order of the prescribed authority under section 11 may, within a period of thirty days from the date of the order prefer an appeal to such appellate authority as may be specified by the State Government by notification in the Gazette.

¶73

(2) The appellate authority may, after giving an opportunity of hearing to the parties, pass such order as it think fit."

¶74

The recovery of dues from legal representatives of an agriculturist who dies before liquidating any financial dues against him is provided in Section 12-B of the Act of 1973 as under:

¶75

"Section 12-B. Recovery of dues from legal representatives .- (1) Where an agriculturist dies before the dues in respect of any financial assistance granted to him have been fully satisfied, the bank or the Tahsildar referred to in section 10-B or the prescribed authority referred to in section 11 or the Collector referred to in section 11-A may proceed against the legal representatives of the agriculturist for the recovery of the dues.

¶76

(2) Where, the proceedings are taken for the recovery against such legal representatives, they shall be liable only to the extent of the property of the deceased which has come to their hands and has not been duly disposed of and for the purpose of ascertaining such liability, the Tahsildar or the prescribed authority or the Collector, as the case may be, may suo motu or on application of the bank compel such legal representatives to produce such account as he or it thinks fit."

¶77

The manner of recovery of dues from sureties is stated in Section 12-C of the Act of 1973 and is extracted below:

¶78

"Section 12-C. Recovery of dues from sureties .-The provisions of this Act

¶79

¶80

relating to the recovery of dues from an agriculturist and his legal representatives shall mutatis mutandis apply to the recovery of such dues from a surety who enters into a contract of guarantee to perform any promise or discharge the liability of an agriculturist in case of his default and to the legal representatives of such surety."

¶81

Exemption from legislations relating to moneylending and agriculturists debt relief is given to an agriculturist in regard to financial assistance by a bank under Section 21 of the Act of 1973:

¶82

"Section 21. Exemption from legislations relating to money-lending and agriculturists debt relief .-Nothing in any law for the time being in force dealing with money-lending or agriculturist's debt relief shall apply to financial assistance given to an agriculturist by a bank."

¶83

The Rules framed under the Uttar Pradesh Agricultural Credit Act, 1973 are called the Uttar Pradesh Agricultural Credit Rules, 1975. Chapter III of the Rules contains detailed provisions for distraint and sale of movables. Rule 22 of the Rules of 1975 contemplates as under:

¶84

" Rule 22. Release of the property before sale : Sections 10-B and 25 . - Where, prior to the date fixed for sales, the agriculturist or his heirs or legal representatives or any person acting on his behalf or any person claiming an interest in the property distrained pays the full amount due, including interest, and other expenses incurred in the distraint and sale of the property charged the Tahsildar shall not proceed with the sale and shall release the property forthwith."

¶85

Chapter IV of the Rules of 1975 pertains to sale of land or interest therein.

¶86

" Rule 23. Application for sale of land or interest therein : Sections 11 and 25. - (1) Where any charge or mortgage has been created on any land or interest or on any other immovable property in favour of a bank in respect of any financial assistance granted to an agriculturist and the whole or any part of amount due in respect thereof remains unpaid, the bank may apply to

¶87

¶88

the Prescribed Authority for the sale of such land, of interest therein or other immovable property.

¶89

(2) Every application by a Bank under sub-rule (1) shall be in Form D. The application shall be accompanied by sufficient number of copies thereof along with copies of notices in Form E for service on the agriculturist or his heirs or legal representatives, as the case may be.(3) A fee at the rate specified in Rule 12(3) shall be payable on every application referred to in sub-rule (1). The amount of fee shall be deposited in Government Treasury of the State Bank of India under the Head mentioned in Rule 12(3) and the Treasury Challan shall be attached to the application as evidence of payment of the prescribed fee.(4) An attested copy of the document creating the charge of mortgage shall be filed along with application referred to in sub-rule (1). But the Prescribed Authority may summon the original as and when it is considered necessary.

¶90

Rule 24. Notice to the agriculturist : Sections 11 and 25 . - (1) On receipt of the application referred to in Rule 23, the Prescribed Authority shall cause to be noted thereon, the date of its presentation, and if it is satisfied that the application is in order, a notice in Form E shall be served on the agriculturist, his heir or legal representatives, as the case may be, calling upon him to pay the amount specified in the notice within a period of twenty-one days or to show cause why a direction for the sale the property charged or mortgaged be not issued.(2) The notice referred to in sub-rule (1) shall be served in the manner laid down in Rule 14.

¶91

Rule 25. Order for sale of the property : Sections 11 and 25. - (1) If the amount specified in the notice referred to in Rule 24 or any part thereof remains unpaid after the expiry of the time allowed therefor, or if no cause is shown; or where the cause shown is considered by the Prescribed Authority to be in sufficient, the Prescribed Authority shall by order direct that the amount due to the bank be paid by sale of the property charged or mortgaged.(2) Every order under sub-rule (1) shall be in writing and shall contain the following particulars -

¶92

(a) the reasons on which the decision is based ;

¶93

(b) a direction as to costs and interest, if any ;

¶94

¶95

(d) the date when the order was signed and pronounced.

¶96

(3) A copy of the order under sub-rule (1) shall be sent to the Civil Court

¶97

¶98

having jurisdiction and, subject to the result of appeal, if any, shall be executed as a decree of such court."

¶99

Chapter V of the Rules of 1975 also has an important bearing on the controversy since it pertains to recovery of dues as arrears of land revenue. The relevant provisions are reproduced as under:

¶100

"Rule 26. [* * *]

¶101

Rule 27. Certificate of recovery : Sections 11-A and 25 . - Every certificate referred to in sub-section (1) of Section 11-A shall be prepared in Form F and shall be sent to the Collector of the district in which the agriculturist or his heirs or legal representatives ordinarily reside or carry on the activities referred to in Section 2(a) or own properties.

¶102

Rule 28. Recovery as arrears of land revenue : Sections 11-A and 25 . - On receipt of the certificate in accordance with Rule 27, the Collector shall cause the same to be entered in a register maintained for the purpose and shall proceed to recover the amount specified in the certificate as arrears of land revenue.

¶103

Rule 29. Utilisation of the amount recovered : Sections 11-A and 25 . - The amount recovered under Rule 21 or Rule 28 shall be utilized in the following manner:

¶104

(a) Firstly, for meeting the expenses of recovery which shall be charged at the rate of ten per cent (or at such other rate as the State Government in the Revenue Department may from time to time fix in this behalf) on the amount of the claim ;

¶105

(b) Secondly, for payment of the Government dues or other prior charges, if any ;

¶106

¶107

(d) The balance, if any, shall be paid to the person from whom the recovery was made.

¶108

Rule 30. Remittance to Bank : Sections 11-A and 25. - The account referred to in clause (c) of Rule 29 shall be remitted to the Bank as far as possible within one month from the date of recovery -

¶109

(i) by money order, if it docs not exceed rupees twenty-five; and

¶110

(ii) by bank-draft or by postal order, if it exceeds rupees twenty-five."

¶111

¶112

The procedure before the learned appellate authority is laid out in Chapter VI of the Rules of 1975, which includes filing an appeal, hearing of the appeal, order of the learned appellate authority and also adjournment of hearing, speak thus:

¶113

" Rule 31. Appeal : Sections 12 and 25. - (1) Every appeal under Section 12 shall be presented in the form of a memorandum setting forth concisely the grounds of objection to the order appealed against. A certificate copy or a typed attested copy of such order shall invariably be attached to the memorandum.

¶114

(2) The memorandum of appeal shall be accompanied by sufficient number of copies thereof along with copies of notices in Form G for service on the respondents."(3) The provisions of Rule 23 (3) and Rule 24 shall mutatis mutandis apply to an appeal under Section 12 as they apply to an application under Section 11(1).

¶115

Rule 32. Hearing of appeal.: Sections 12 and 25. - (1) Where the appellate authority is of the opinion that the memorandum of appeal suffers from any defect it shall make a note to that effect and shall call upon the appellant to remove the same.(2) If the defects pointed out by the appellate authority arc removed within the period specified therefor or within such extended period as the appellate authority may from time to time grant, the latter may admit the appeal for hearing.(3) If the appellant fails to remove the defects within the period specified in sub-rule (2), or if the appeal is beyond the limitation specified in Section 12(1), the appellate authority shall, subject to the provisions of Section 24, reject the appeal.(4) Where the appeal is admitted, the appellate authority shall fix a date for hearing and the notice of the date of hearing shall be served on the respondent in Form G. An intimation of the date shall also be sent to the appellant.

¶116

Rule 33. Order of the appellate authority : Sections 12 and 25 . - (1) On the date fixed for the hearing of an appeal, the appellate authority shall go through the record and hear the parties to the dispute or their authorised agents and shall pass such order on the appeal as the appellate authority may deem fit.(2) The provisions of sub-rules (2) and (3) of Rule 25 shall mutatis mutandis apply to every order made under this rule.

¶117

Rule 34. Adjournment of hearing : Sections 12 and 25. - The appellate authority may, in its discretion, adjourn to any other date the hearing of any

¶118

¶119

appeal at any stage."

¶120

Chapter VII of the Rules of 1975 contains other miscellaneous provisions including issuance of summons, memorandum of oral evidence, ex parte orders, certified copy, return of documents, processes how to be issued and disposal of property by bank which read as under:

¶121

" Rule 35. Issue of summons : Sections 10-B, 11, 12 and 25 . - (1) The Tahsildar, the Prescribed Authority or the appellate authority, as the case may be, may issue summons for the attendance of a witness, provided the party concerned deposits in advance such amount towards expenses as officer or authority concerned considers necessary for securing such attendance.

¶122

(2) The summons shall require the person summoned, to appear before the said officer or authority at a staled time and place, and the summons so issued shall specify whether his attendance is required for the purpose of giving evidence or to produce any documents or for both. Any particular document the production of which is required for the purpose, shall be described in the summons with reasonable accuracy.(3) Any person may be required to produce a document, without being summoned to give evidence and such person shall produce the required document personally or may send it by registered post.(4) The summons may be served in the manner specified in Rule 14 or by any other mode specified in the Code of Civil Procedure, 1908.

¶123

Rule 36. Memorandum of oral evidence : Section 25. - The Tahsildar, the Prescribed Authority or the Appellate Authority shall make a memorandum of any oral evidence admitted by him or it.

¶124

Rule 37. Ex parte orders : Section 25. - (1) In the case of absence of any party the case may be decided ex parte.(2) The Tahsildar, the Prescribed Authority or the Appellate Authority may on an application being made in that behalf, and for sufficient cause -

¶125

(a) set a side an ex parte order, or

¶126

(b) restore an application or appeal dismissed for default of appearance of the applicant, or the appellant as the case may be.

¶127

¶128

(3) An application under sub-rule (2) shall be made within thirty days from the date of the ex parte order or from the date of dismissal of application or appeal and in the case of an ex parte order, where the notice was not duly served on the applicant, within thirty days from the date of knowledge of such order.(4) Notwithstanding anything contained in sub-rule (3), no application referred to in sub-rule (2) shall be entertained -

¶129

(a) in the case of any movable property, if such property has already been sold, and

¶130

(b) in the case of any immovable property, if the sale has already been confirmed.

¶131

Rule 38. Certified copy : Section 25. - (1) Any person affected by an order passed by the Tahsildar, the prescribed authority or the appellate authority shall be entitled to be furnished with a certified copy thereof and any other connected document on application duly made in that behalf.(2) Every application for certified copy shall be accompanied by the requisite copying charges, The scale of charges shall be the same as laid down for the criminal courts subordinate to the High Court.

¶132

Rule 39. Return of documents : Section 25. - (1) Every document or record tendered by a party or any other person may, on application, be returned to such party or person after the disposal of appeal and where no appeal is filed, after the expiry of the period for appeal. No fees shall be charged for return of said documents or records.(2) The original deed of charge, the variation or mortgage in possession of the bank shall be returned to the agriculturist or his legal representatives after the bank's dues arc discharged in full.

¶133

Rule 40. Processes how to be issued : Section 25 . - Every order, notice, summons or intimation issued by any officer or authority under the Act or these Rules shall be in writing and shall bear the signature of such officer or authority or such authority as may be authorised in this behalf, and shall be authenticated by the seal of such officer or authority.

¶134

Rule 41. Disposal of property by bank : Sections 12-A and 25 . - (1) Where a bank acquires any land or any interest therein or any other immovable property under Section 12-A, it shall dispose it of by a registered sale-deed in favour of an agriculturist within a period of one year from the date of such acquisition.(2) A bank desirous of transferring the property referred to in sub-rule (1) after the expiry of the period referred to in the said sub-rule, shall have to obtain prior approval of the State

¶135

¶136

Government, in the Revenue Department.(3) Every application for permission to transfer a property under sub-rule (2) shall be sent to the Secretary to the Government of Uttar Pradesh in the Revenue Department, Council House, Lucknow, and if no reply is received within six months from the date of receipt of such application by the Government the application for permission shall be. deemed to have been granted."

¶137

From the scheme of the Uttar Pradesh Agricultural Credit Act, 1973 as discussed earlier, it is evident that the Uttar Pradesh Agricultural Credit Act, 1973 is an enactment created for a special purpose and a specific class of citizens namely agriculturists, who have taken agricultural loans. The provisions of Uttar Pradesh Agricultural Credit Act, 1973 confer special benefits and provide for additional protection to agriculturists who default in payment of loans. Many features of the Uttar Pradesh Agricultural Credit Act, 1973 show that it is a beneficial legislation created for agriculturists.

¶138

To the contrary, the Uttar Pradesh Public Moneys (Recovery of Dues) Act, 1972 is a prior legislation which is a general nature. It is settled rule of statutory construction that the special enactment shall prevail over the general statute. Further the Uttar Pradesh Public Moneys (Recovery of Dues) Act, 1972 does not recognize the distinction between agriculturists and other borrowers and creates no special provisions for the agricultural class and offers no protection to the agriculturists.

¶139

In case the proceedings are taken out against the agriculturists for the recovery of agricultural loan under the Uttar Pradesh Public Moneys (Recovery of Dues)

¶140

¶141

Act, 1972, agriculturists will be prejudiced as the said Act, does not provide the same protection as is envisaged in the Uttar Pradesh Agricultural Credit Act, 1973.

¶142

Canon of statutory interpretation that special law shall prevail over the general law flowing from the maxim “Generalia specialibus non derogant”, have settled the proposition with good and consistent authorities. [ References : G.P. Singh's Principles of Statutory Interpretation¹ , Suresh Nanda Vs. C.B.I.² , Rajan Sandhi P. Vs. Union of India and another³ , Commercial Tax Officer, Rajasthan Vs. M/s. Binani Cements Ltd. and another⁴ , Sharat Babu Digumarti Vs. Govt. of NCT of Delhi⁵ , and Raheja Universal Limited Vs. N.R.C. Limited and others⁶ . ]

¶143

In such view of the matter and in the facts of the instant case, the Uttar Pradesh Agricultural Credit Act, 1973 shall be applicable to the case of the petitioner and shall prevail over the Uttar Pradesh Public Moneys (Recovery of Dues) Act, 1972.

¶144

In the wake of preceding discussion, the recovery certificate dated 29.06.2019 issued by the respondent No.5-Bank is beyond jurisdiction.

¶145

The recovery certificate dated 29.06.2019 issued by the respondent No.5-Bank under the Uttar Pradesh Public Moneys (Recovery of Dues) Act, 1972 and the

¶146

1 19^th Edition pg 133

¶147

2 2008 (3) SCC 674

¶148

3 2010 (10) SCC 338

¶149

4 2014 (8) SCC 319

¶150

5 2017 (1) SCC (Cri) 628

¶151

6 2012 (4) SCC 148

¶152

¶153

attachment notice dated 14.01.2020 issued by the respondent no.3 as well as consequential proceedings are liable to be set aside and are set aside.

¶154

It is open to the respondent No.5-bank to take out the fresh recovery proceedings Uttar Pradesh Agricultural Credit Act, 1973 read with Uttar Agricultural Credit Rules, 1975, to recover its outstanding dues from the petitioner.

¶155

The writ petition is allowed to the extent indicate above.

¶156

Order Date :- 29.9.2021

¶157

Ashish Tripathi

Manmohan Mishra v. State of U.P. and 4 Others

Case brief

What is this about?

What did the court decide?

Manmohan Mishra v. State of U.P. and 4 Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

C/M F.R. Islamia Inter College and 12 Others Vs State of U.P. and 6 Others

Badam Singh Vs State of U.P. and 3 Others

Shashi Prakash Yadav Vs State of U.P. and 2 Others

Mohd. Salman Qidwai Vs Union of India and 3 Others

Balwant Singh Vs State of U.P. and 2 Others

Suresh Pal Singh Vs the Deputy Commissioner and 3 Others