Zila Shakari Krishi Avam Gram Vikas Ba Vs Gulab Singh and Others

Ratan Singh, S/o Rekha Singh, aged about 40 years, Occupation Accountant, Sichai Vibagh, Ambikaspur, R/o Sichai Vibhag, Ambikaspur, District Surguja (C.G.)

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State of Chhattisgarh, through its Collector, Korea, Baikunthpur, C.G.

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... Respondents

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(Cause Title is taken from Case Information System)

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For Appellant	: Mr. Abhinav Dubey , Advocate holding the brief of Mr. Sunil Tripathi, Advocate
For Respondent No. 1	: Mr . Shakti Raj Sinha, Advocate
For Respondent No. 3	: Mr. Shobhit Koshta, Advocate
For State/Respondent No. 4	: Ms. Saumya Sharma, Panel Lawyer

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Hon'ble Shri Justice Rakesh Mohan Pandey

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Order on Board

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0 7.10.2024

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Defendants No. 1, 2 and 5/appellants have filed this appeal under Section 96 of the CPC challenging therein the judgment and decree passed by the

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Additional District Judge, Manendragarh, District Korea in Civil Suit No. 6- A/2009 dated 14.05.2010, whereby, the suit filed by the plaintiff has been decreed.

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The plaintiff filed a Civil Suit for declaration of title, permanent injunction, and declaration of the auction dated 04.06.2009 as null and void, inter alia, on the ground that the plaintiff is a member of a Scheduled Tribe. The ancestral property bearing survey Nos. 143, 144, 507, 692, 218, 291, 295, 541, 542, and 564, a total of 4.65 hectares, is situated at Village Saida, Tahsil Khandgawan, District Korea, C.G. It is further pleaded that on 05.05.2002, the plaintiff mortgaged his property and took a loan of Rs. 3,38,900/- to purchase a tractor. From 2002 to 2005, he repaid Rs. 1,50,000/-, and Rs. 38,000/- was given to the manager of defendant No. 1, but no receipt was given by the then Manager, Mr. Nagar. On May 18, 2009, Rs. 3,000/- was given to Mr. Nagar, but no receipt was given. It is further pleaded that Rs. 700/- was given to defendant No. 1 to issue a passbook, but the same was not issued by Mr. Nagar. It is also pleaded that in the year 2005, defendant No. 1 seized the tractor, and it was taken back by defendant No. 1, and the same was auctioned to get back consideration of Rs. 1,52,000/-. The plaintiff further pleaded that according to provisions of Section 165 (6) of the C.G. Land Revenue Code, 1959, the property of a Scheduled Tribe cannot be auctioned contrary to the law. The plaintiff further pleaded that on 04.06.2009, defendant No. 1 called him in the Village Khandgaon and demanded Rs. 10,000/-. On the said date, the house of the plaintiff was put for auction for consideration of Rs. 3,90,000/-. The plaintiff further pleaded that no notice was issued to the plaintiff regarding the auction dated 04.06.2009.

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The defendants filed their written statement and denied the plaint

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averments. Defendants No. 1, 2 and 5 stated that a loan of Rs. 3,38,900/was taken by the plaintiff on 09.05.2002 to purchase a tractor and suit property admeasuring 4.65 hectares was mortgaged. It is also pleaded that from the year 2002 to 2005, the plaintiff had refunded/paid Rs. 1,22,000/-. Defendants No. 1, 2 and 5 denied payment of Rs. 35,000/-, Rs. 3000/-, and Rs. 700/-, respectively. It is further stated that the auction proceeding was conducted in the presence of villagers at Gram Panchayat Bhawan, Saida.

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Defendant No. 4 filed a separate written statement and denied the plaint averments.

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The learned trial Court framed issues and held that the suit property was auctioned by defendants No. 1, 2, and 5 without following procedure and without service of notice. It is further held that the auction proceeding is illegal and the plaintiff is entitled to get a decree of permanent injunction against the defendants, and thus, the suit was decreed.

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Learned counsel appearing for defendants No. 1, 2 and 5/appellants submitted that the plaintiff had taken a loan of Rs. 3,38,900/- to purchase a tractor after mortgaging the suit property. He further submitted that the plaintiff failed to make payment of installments; therefore, a notice was issued to the plaintiff/respondent No. 1 to refund the amount. He also submitted that notice Ex. D/1 was served on the wife of the plaintiff, namely, Rama Bai in the presence of two witnesses, namely, Dev Sai and Dhan Sai and a copy of the notice was affixed at the door of the plaintiff/respondent No. 1. It is further contended that after service of notice, the proceeding for auction was initiated by the defendants and the suit property was auctioned and the same was purchased by defendant No. 4/respondent No. 3. It is also contended that the notice was served on the wife of the

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plaintiff/respondent No. 1 according to Rule – 24 of the C.G. Sahakari Krishi Aur Vikas Bank Adhiniyam, 1999 (hereinafter referred as “Adhiniyam, 1999”) and service of notice and auction proceedings have been proved by the witnesses. It is further stated that the learned trial Court committed an error of law in decreeing the suit and the same is liable to be set aside. It is also stated that a representation was moved by the plaintiff/respondent No. 1 to extend the period to deposit the amount vide Ex. D/3 which shows that notice was duly served upon the plaintiff. In support of his arguments, he placed reliance on the judgment passed by the High Court of Kerala in the matter of Abbas vs. Moideen Kunhi and another reported in 2014 SCC Online Ker 14063 .

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On the other hand, Mr. Shakti Raj Singh, counsel appearing for the plaintiff/respondent No. 1 would oppose. He fairly submits that the plaintiff had taken a loan to purchase a tractor from defendants No. 1, 2, and 5. He further submitted that more than 50% amount of the loan was repaid by the plaintiff/respondent No. 1. He also submitted that the plaintiff was regularly paying installments to the Bank, but behind the back of the plaintiff auction proceeding was initiated and without service of notice the house of the plaintiff was put for the auction and it was purchased by defendant No. 4/respondent No. 3. He stated that the learned trial Court after appreciating entire documentary and oral evidence decreed the suit. He also stated that the instant appeal deserves to be dismissed.

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Mr. Sobhit Koshta, counsel appearing for defendant No. 4/respondent No. 3 would support the Bank. He submitted that the suit property was put for auction strictly in accordance with the law and notice was also served on the wife of the plaintiff/respondent No. 1. He further submitted that according to the provisions of Order 5 Rule 15 of the CPC, in absence of the defendant,

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the summons can be served on any other member of the family. He also submitted that the notice was served on the wife of the plaintiff in the presence of two witnesses, namely, Dhan Sai and Dev Sai.

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Ms. Saumya Sharma, Panel Lawyer appearing for the State would support the judgment passed by the learned trial Court.

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10. I have heard learned counsel for the parties and perused the documents placed on the record.

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11. Rule – 24 of the C.G. Sahakari Krishi Aur Vikas Bank Adhiniyam, 1999 says that the notice of demand shall be served upon the defaulter by delivering a copy thereof to him or to some adult male member of his family, or if such service cannot be effected, affixing a copy of the notice of demand on some conspicuous part of his residence or office or registered office or the land to which the security relates.

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12. Rule 24 of the Adhiniyam, 1999 is reproduced here-in-below for reference:-

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24. (1) When a distraint is made under section 23, the distrainer shall serve or cause to be served upon the defaulter a written demand specifying the amount for which the distraint is made.

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The notice of demand shall be dated and signed by the distrainer and shall be served upon the defaulter by delivering a copy thereof to him or to some adult male member of his family at his usual place of residence or office or registered office or to his authorized agent, or if such service cannot be effected, affixing a copy of the notice of demand on some conspicuous part of his residence or office or registered office or the land to which the security relates.

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13. According to this Rule, the notice shall be signed by the distrainer, and notice can be served upon any male member of the family, in the absence of the defaulter. This rule further states that if such service cannot be effected, a copy of the notice of demand can be affixed on some conspicuous part of

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his residence or office or registered office or the land to which the security relates.

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14. In the present case, the plaintiff took a loan of Rs. 3,38,900/- to purchase a tractor after mortgaging the property including the house. From the pleading made in the plaint, it is apparent that the plaintiff paid Rs. 1,22,000/-. It appears that the plaintiff could not repay the installments within due time; therefore, a notice was issued with the intent to put the property of the plaintiff for auction as he was declared a defaulter. Ex. D/1 dated 19.05.2009 would show that a notice was served upon one Rama Bai wife of Gulab Singh/plaintiff in the presence of two witnesses, namely, Dhan Sai and Dev Sai and according to this notice, the date of the auction was scheduled on 04.06.2009. Defendants No. 1, 2, and 5 in their written statement have not averred with regard to service of notice on the plaintiff or his wife. The plaintiff in his plaint has specifically pleaded that no notice was served upon him before initiating proceedings for auction of the property.

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15. According to Rule 24 of the Adhiniyam, 1999, notice can be served on male members of the family of the defaulter and if such service is not possible, it can be affixed at any conspicuous part of the residence of the defaulter.

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16. In the present case, as deposed by DW/3, namely, Om Prakash, notice was served upon the family member. Further, if notice was served on a member of the family there was no need to affix the notice at any conspicuous part of the residence of the defaulter. It is deposed by DW/3 that notice was served in the presence of Dhan Sai and Dev Sai. Ex. D/1 would show that it contains the signature of Dhan Sai alone and the signature of Dev Sai is missing, and the name of the father of Dhan Sai and address is also not mentioned. Defendants No. 1, 2 and 5 have not examined either Rama Bai

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or Dhan Sai to prove the fact that notice was served on any family member of the defaulter; therefore, the learned trial Court rightly held that notice was not served upon the plaintiff before initiating proceeding for auction.

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17. In the matter of Abbas (supra), the High Court of Kerala has held that “Requirement of law for service of summons is that attempt should be made to serve the notice personally on the party unless there is no agent empowered to accept service on behalf of the party. However, summons is served on an adult member of the family in the absence of the party, the process server has to take care and caution to of noting down the name and details of the adult member of the family.”

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18. The judgment relied on by the learned counsel for the appellant/defendants No. 1, 2, and 5 does not support his case as this judgment says that the process server has to take care and caution to of noting down the name and details of the adult member of the family.

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19. In the present case, neither the name and details of the wife of the plaintiff nor the name and details of witness Dhan Sai are given in the notice.

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20. As the notice was not served upon the plaintiff before initiating the proceeding of auction; the learned trial Court rightly recorded a finding that the auction proceeding was bad in law.

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21. With regard to the contention raised by learned counsel for the appellants that a representation was moved by the plaintiff to extend the period to deposit the amount appears to be misconceived as there is no whisper with regard to notice, and representation can be moved by a borrower for extension of time.

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22. Taking into consideration the above-stated discussed facts, in the opinion of this Court, the learned trial Court has not committed an error of law in decreeing the suit.

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23. Accordingly, the instant appeal is liable to be and is hereby dismissed .

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24. No order as to cost(s).

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25. A decree be drawn accordingly.

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Sd/-

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(Rakesh Mohan Pandey) Judge

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$iddhant

Zila Shakari Krishi Avam Gram Vikas Ba v. Gulab Singh and Others

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Zila Shakari Krishi Avam Gram Vikas Ba v. Gulab Singh and Others

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