w w w . L a w y e r S e r v i c e s . i n

Bhola Singh & Others v/s The Prescribed Authority, The Tehsildar & Others

    Civil Writ Petition Nos. 621 & 623 of 1999

    Decided On, 03 March 1999

    At, High Court of Rajasthan


    For the Appellants: S.L. Jain, Advocate. For the Respondents: -----------.

Judgment Text

B.S. Chauhan, J.

1. Both these writ petitions have been filed for quashing the proceedings and the orders passed by the Tribunal constituted under the Rajasthan Agricultural Credit Operations (Removal of Difficulties) Act, 1974 (for short, "the Act"). Both cases are identical but the facts of S. B. Civil Writ Petition No. 623/1999 are considered to decide the controversy.

2. Petitioner's grievance is that he had taken the loan to the tune of Rs. 1,50,000/- on 10-6-1994, which had to be paid in half-yearly instalments. Petitioner could not deposit the instalments in time, proceedings have been initiated against him under the provisions of the Act on 1-4-1998. Till today, no final order has been passed. No order of sale of movable/immovable properties has been passed, The instant petition has been filed for quashing the said proceedings for recovery.

3. Two main grounds have been taken in, the petition. Firstly, that in Corporation Bank Vs. D.S. Gowda and Another, the Hon'ble Supreme Court has held that charging interest above 12.5% is excessive and unfair in case of agricultural loan. Secondly, this Court has already entertained a petition, i.e., S.B. Civil Writ Petition No. 2154/1998 and passed some interim order, the Court is bound to pass the similar order for the reason that the Court cannot discriminate among the litigants. Mr. Jain has vehemently argued both the points. There is a complete fallacy in the arguments advanced by Mr. Jain. In Corporation Bank Vs. D.S. Gowda and Another, the Hon'ble Supreme Court has held that the interest with the periodical rest on bank loan i

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s governed by the terms of Agreement between the bank and the borrower; and secondly, that the bank rate should be in conformity with the direction/Circular/Notification issued by the Reserve Bank of India from time to time as they are of Statutory nature as having been issued under the provisions of the Banking Regulations Act, 1949 (hereinafter called "the Act, 1949"). In the said case, the Hon'ble Supreme Court was dealing with the Circulars issued by the Reserve Bank of India on 14-3-72, 15-10-74, 13-3-76, 17-8-76, 28-2-78 and 15-9-94. It was also held that the condition of recovery of interest on quarterly rest in a case of agricultural loan, was contrary to the conditions laid down in those circulars. The Hon'ble Supreme Court also considered the provisions of Section 21-A of the Act of 1949, which reads as under:--

"21-A. Rates of interest charged by banking companies not to be subject to scrutiny by Courts. Notwithstanding anything contained in the Usurious Loans Act, 1918, or any other law relating to indebtedness in force in any State, a transaction between a banking company and its debtor shall not be reopened by any Court on the ground that the rate of interest charged by the banking company in respect of such transaction is excessive."

4. The Court observed that as the validity of the said provisions was not under challenge and the recovery was in contravention of the said Circulars issued by the Reserve Bank of India, the recovery of interest at a rate higher than provided in those Circulars, by the bank was not permissible.

5. The issue had also been considered by the Hon'ble Supreme Court in State Bank of Patiala and Another Vs. Harbans Singh, wherein it was held that the liability to pay quarterly rest interest was illegal. In Corporation Bank AIR 1994 SCW 2721 (supra), entire contents of the particular circular had not been taken into account and, thus, the matter has been referred to the Constitution Bench in Central Bank of India Vs. Ravindra and Others, as the Supreme Court was of the view that the issue : whether the liability of borrower to pay interest on principal sum includes interest that became merged with the principal sum adjudged or it would be the principal sum as loans.

6. In Canara Bank Vs. P.R.N. Upadhyaya and Others, the Hon'ble Supreme Court has held that the law laid down in State Bank of Patiala and Another Vs. Harbans Singh,was per incuriam and the expression "term loan" implies the grant of loan for a fixed term. "It has no relevance with the purpose, for which loan is granted." Therefore, it makes it clear that the purpose, for which the loan is taken or granted, is immaterial or irrelevant and it has nothing to do so far as rate of interest is concerned.

7. In Noida Enterpreneurs Association v. U.P. Financial Corporation and Anr., the Apex Court has held that the issue of interest cannot be determined by the Court in writ jurisdiction as it is purely a matter of contract between the Corporation and the borrower. Similarly, in State Bank of India Vs. Yasangi Venkateswara Rao, the Supreme Court, while dealing with the case of agricultural loan, has held that in case of bank loans, the Court cannot interfere and reduce the interest, as that is a matter of contract between the parties. The Court made the following observations (at p. 897 of AIR) :--

"If the parties agreed that in respect of the amount advanced against a mortgage, the compound interest will be paid, we fail to understand as to how the Court can possibly interfere and reduce the amount of interest agreed to be paid on the loan so taken. The mortgage of a property is with a view to secure loan and has no relation whatsoever with the quantum of interest to be charged."

8. The Court further held that the provisions of Section 21 -A of the Act, 1949, were constitutionally valid. The Court observed as under :--

"The enactment of Section 21-A was clearly within the domain of the Parliament. The said Section applies to all types of loans which are granted by a banking company, whether to an agriculturist or a non-agriculturist, ....... the said Section 21-A had been validly enacted."

9. Therefore, in sum and substance, the ratio of all the judgments, which have been decided by the Hon'ble Supreme Court is that (i) the Instructions/Circulars/Notifications issued by the Reserve Bank of India from time to time, in exercise of its power under the Act, 1949, are binding as the same have statutory force; and (ii) Section 21-A of the said Act puts an embargo on the powers of the Court to interfere with the amount of interest to be charged on the loan, however, me Court can examine the matter to satisfy itself only to the extent whether the interest etc. is to be recovered in contravention of the Circulars issued by the Reserve Bank of India from time to time.

10. In the instant case, the agreement reached between the parties has not been placed on record. Petitioner has not stated anywhere that the copy of the Agreement or Schedule of Repayment had not been given to him or if he has ever asked the bank to furnish the copies of the same. The Schedule of Repayment has, also, not been filed. Any Circular/Instruction/Notification issued by the Reserve Bank of India, which may be applicable in this case, or is in force for the time being, has not been filed. It has not been said that the Circulars issued by the Reserve Bank of India, which were applicable in the case of Corporation Bank 1994 AIR SCW 2721 (supra), are applicable in the instant case and the same had not been superseded by subsequent circulars etc. It has, also, not been pointed-out anywhere that what are the terms mentioned in the circulars issued by the Reserve Bank of India which prohibit the recovery of interest at the rate which the respondents are charging. It is nowhere mentioned as what is the rate of interest which is being recovered from the petitioner. A bald statement that the proceedings are being held in contravention of the law laid down by the Supreme Court in Corporation Bank (supra), is not sufficient to maintain the writ petition.

11. The petitions have been filed with utmost irresponsibility and in complete dereliction of duty towards the Court. It is settled principle of law that a party has to plead the case and produce/ adduce sufficient evidence to substantiate his submissions made in the petition and in case the pleadings are not complete, the Court is under no obligation to entertain the petition. In Bharat Singh and Others Vs. State of Haryana and Others, ; the Hon'ble Supreme Court has observed as under (at p. 2186 of AIR) :

"In our opinion, when a point, which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or the counter-affidavit, as the case may be, the Court will not entertain the point........... There is a distinction between a hearing under the CPC and a writ petition or a counter-affidavit. While in a pleading, i.e. a plaint or written statement, the facts and not the evidence are required to be pleaded. In a writ petition or in the counter-affidavit, not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it."

12. Similar view has been reiterated in M/s. Larsen and Toubro Ltd. Vs. State of Gujarat and Others, ; National Buildings Construction Corporation Vs. S. Raghunathan and Others, and Ram Narain Arora Vs. Asha Rani and Others,

13. In the instant petitions, the petitioners have not made any proper pleadings nor produced any document in support of the said pleadings. Thus, the petitions, which have been filed in a most casual and cavalier manner, are not liable to be entertained.

14. It has been mentioned in the petitions that this Court has entertained S. B. Civil Writ Petition No. 2152/1998, Shrawan Singh v. Tehsildar, Revenue and others, but it has not been mentioned what interim order has been passed in that case and on what date the order was passed. Neither a copy of the said order has been filed nor it is produced in the Court. Mr. Jain's argument that Court is bound to pass same interim order, is untenable in a case where filing such vague petitions amount to abuse of the process of the Court. There can be no quarrel on legal proposition that a Court must pass the similar interim order in petitions having similar facts and circumstances.

15. In Vinod Trading Company Vs. Union of India (UOI) and Others, and Bir Bajrang Kumar v. State of Bihar AIR 1987 SC 1345 , the Hon'ble Supreme Court has expressed the view that the interim orders should not be contradictory to each other if the facts and circumstances of the case are identical. Similarly, in Vishnu Traders v. State of Haryana and Ors. the Supreme Court has observed as under:--

"In the matters of interlocutory orders, principle of bind precedent cannot be said to apply. However, the need for consistency, approach and uniformity in the exercise of judicial discretion respecting similar causes and the desirability to eliminate occasions for grievance of discriminatory treatment requires that all similar matters should receive similar treatment except where factual differences require a different treatment so that there is an assurance of consistency, uniformity, predictability and certainty of judicial approach."

16. Same view has been reiterated in Smt. Rampati Jaiswal Vs. State of U.P. and others,

17. In the conditions mentioned hereinabove, such an issue is not worth considering. It has been repeatedly pointed-out by Mr. Jain that I myself had decided some cases of agricultural loan and issued direction to the respondent-banks therein not to recover compound interest. Copy of such a judgment has not been produced. Even if a direction has been issued by me earlier, which runs counter to law laid down by the Supreme Court in the cases referred to above and particularly in State Bank of India Vs. Yasangi Venkateswara Rao, the same cannot be said to have a binding effect on this Court. In Hotel Balaji and others, Vs. State of Andhra Pradesh and others, etc. etc.,, the Hon'ble Supreme Court as observed as under:--

"To perpetuate an error is no heroism. To rectify it is the compulsion of the judicial conscience."

18. Thus, if this Court has committed a mistake earlier, it is required to be rectified at the earliest. In Re: In Re: Sanjiv Datta and Others, the Apex Court has observed as under (at p. 2208 of AIR SCW) :--

"None is free from errors, and the Judiciary does not claim infallibility. It is truly stated that a Judge, who has not committed mistake, is yet to be born. Our legal system, in fact, acknowledges the fallibility of the Courts and provides for both internal and external checks to correct the errors. The law, ...........appeals, reviews, references and revisions constitute the internal checks..........Together they go a long way to ensure judicial accountability."

19. Thus, in view of the above, even if a wrong decision has been given earlier by me, it cannot be said to be a binding authority on this Court. Moreover, the quality of the judgment depends upon the assistance rendered at the Bar. The Judge cannot take the entire responsibility of laying down a correct law ex parte without any assistance of the learned members of the Bar. The Judge cannot afford to retire from Chamber and sit in the library and find out the case law on the issues involved in every case and what is the occasion to do anything in a case where the pleadings are so vague as the petition itself cannot be entertained.

20. There is another aspect of the matter. The Tribunal has not passed any order till today which may adversely affect the petitioner, though there is an order of attachment of movable property passed more than six months ago. Petitioner has not stated anywhere whether this order has been executed and if loan was granted to the petitioner for purchasing a tractor, whether the tractor has been mortgaged with the respondent-bank and if it has been mortgaged, what is wrong in passing an order of attachment as it may be necessary for securing the amount of the said loan. It has further not been mentioned whether there was any guarantor in the case, who may, also, be held liable under the provisions of Section 146 of the Contract Act, 1872. Whether the proceedings under the Act of 1974 are attracted or not, is irrelevant in a case where petitioner has not furnished any particulars giving rise to the case. Even if a Court's order is without jurisdiction, the Court is not bound to interfere if it has been passed in the interest of justice, (vide Mohammad Swalleh and Others Vs. Third Addl. District Judge, Meerut and Another,

21. In Re: Sanjiv Datta 1995 AIR SCW 2203 (supra), the Apex Court has also observed, as under (at p. 2211 of AIR SCW) :--

"Some members of the profession have been adopting perceptibly casual approach to the practice of the profession as is evident from............. the filing of incomplete and inaccurate pleadings.......... and the failure to remove office objections......... they do not realise the seriousness of these acts and omissions. They not only amount to the contempt of the Court but do positive dis-service to the litigants and create embarrassing situation with Court leading to avoidable, unpleasantness and delay in disposal of matters. This augurs ill for the health of our judicial system."

22. Filing of petitions in such a cavalier and casual manner is depricated and the conduct of the petitioners and the counsel is censured. Though it is a fit case where, in view of the judgment of the Hon'ble Supreme Court in Re : Sanjiv Dutta (supra), proceedings under the Contempt of Courts Act are warranted to be initiated but because of the peculiar conditions of the petitioners, I am not inclined to resort to such a course.

23. Both the petitions are dismissed with costs of Rs. 2,000/- (Rupees two thousand) each and the same is to be recovered by the learned District Judge, Sri Ganganagar treating it as a decree of the Court and to be deposited in the Account of the Rajasthan Legal Services Authority, Jaipur. A copy of the order be sent to the learned District Judge, Sri Ganganagar by the Registry within a week from today for compliance.