Ratna Goswami vs The Assam State Financial Corporation ...
2025 Latest Caselaw 1989 Gua

Gauhati High Court

Ratna Goswami vs The Assam State Financial Corporation ... on 5 August, 2025

Author: Sanjay Kumar Medhi

Bench: Sanjay Kumar Medhi

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GAHC010012552015




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                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                        Case No. : WP(C)/2495/2015

         RATNA GOSWAMI
         S/O LT. BHUBANESWAR GOSWAMI, R/O KOKJHAR, MOUZA- CHAYANI, P.S.
         PALASHBARI, DIST- KAMRUP, ASSAM


         VERSUS

         THE ASSAM STATE FINANCIAL CORPORATION and 3 ORS
         REP. BY THE MANAGING DIRECTOR, VITTIYA BHABAN, MD. SHAH ROAD,
         PALTAN BAZAR, GUWAHATI, KAMRUP, ASSAM

         2:THE MANAGING DIRECTOR
         VITTIYA BHABAN
          MD. SHAH ROAD
          PALTAN BAZAR
          GUWAHATI
          KAMRUP
         ASSAM

         3:THE DY. GENERAL MANAGER
         VITTIYA BHABAN
          MD. SHAH ROAD
          PALTAN BAZAR
          GUWAHATI
          KAMRUP
         ASSAM

         4:THE STATE OF ASSAM
          REP. BY THE COMMISSIONER and SECY.
          DEPTT. OF FINANCE
          GOVT. OF ASSAM
          DISPUR
          GHY-
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Advocate for the Petitioner   : MS.M DEV, MS.N DEB,MS.P DEB,MS.N S THAKURIA

Advocate for the Respondent : MR.L P SHARMAR-1,2 and 3, MS. T GOSWAMI (R-1,2,3),MR P K

KALITA (R-1,2,3),SC, FINANCE(R4),MR.R THAKURIA(R-1, 2 & 3),

BEFORE HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI

For the Petitioner : Ms. M Dev, Advocate.

     For the Respondents        :     Shri PK Kalita, Sr. Advocate,
                                      Ms. T Goswami, Advocate.

     Dates of Hearing            :    05.08.2025.

     Date of Judgment            :    05.08.2025.



                                 Judgment & Order

The instant petition under Article 227 of the Constitution of India has been instituted against the action of the respondent-Corporation in taking steps for sale out of the joint family property of the petitioner in the name of providing loan. The primary contention of the petitioner is that no such loan was provided or sanctioned at any point of time.

2. As per the projected facts, the petitioner had approached the Assam Financial Corporation (AFC) for purchasing a Minibus on hire purchase basis. However, the Corporation had convinced the petitioner to purchase a secondhand vehicle from an earlier borrower who was unable to repay the amount. It is the case of the petitioner Page No.# 3/10

that though a talk was held in that issue, there was no actual advancement of loan and it is also alleged that the signatures of the petitioner were taken in some papers, including the papers of the joint family property. It is the categorical case of the petitioner that neither any loan nor any vehicle was provided to him. The AFC had subsequently instituted a Bakijai proceeding against the petitioner which, however was rejected vide an order dated 27.01.1999. Nine years thereafter, the AFC had issued a notice which was also the subject matter of the writ petition, being WP(C)/3474/2008 which was disposed of by this Court vide an order dated 11.11.2014. Vide the said order which was passed in the absence of the learned counsel for the petitioner, this Court had, however recorded the aspect of dropping of the Bakijai proceeding vide the order dated 27.01.1999. However, on the submission made on behalf of the Corporation that a scheme for settlement was in vogue, this Court had made certain observations that the petitioner would be at liberty to approach the Corporation for settlement. It is the case of the petitioner that he was not aware of the order which was passed ex parte.

3. Be that as it may, on 19.03.2015, a notice was issued by the respondent- Corporation to the registered valuer to submit a valuation report and the copy of the said notice was marked to the petitioner which gave rise to the present cause of action. This Court vide an order dated 13.05.2015 had passed an interim order which has been extended from time to time.

4. I have heard Ms. M Dev, learned counsel for the petitioner. I have also heard Shri PK Kalita, learned Senior Counsel assisted by Ms. T Goswami, learned counsel for the respondent-Corporation.

5. Ms. Dev, learned counsel for the petitioner has submitted that once the Bakijai proceeding was dropped vide the order dated 27.01.1999 which was also recorded by Page No.# 4/10

this Court in its order dated 11.11.2014 passed in WP(C)/3474/2008, the impugned notice could not have been issued. She has also highlighted the observations made in the order dated 27.01.1999 passed by the Bakijai Officer, who has recorded that till the year 1994, the vehicle in question still stood in the name of the earlier owner and not the petitioner. She has also submitted that the premises on which the respondent- Corporation had proceeded was fallacious as the petitioner is not an Industrial Concern. She has also submitted that joint family property was sought to be made the subject matter of an imaginary mortgage in which, the petitioner had not given any consent. She has submitted that so far as the notice dated 19.07.2008 under Section 29 of the State Financial Corporation Act is concerned, the same was the subject matter of challenge in the earlier writ petition in which, this Court had made necessary observation regarding dropping of the Bakijai proceeding. It is highlighted that till the year 1994, the vehicle in question was in the name of Shri Ratulmalla Buzarbaruah and was never transferred to the petitioner.

6. By referring to the affidavit-in-opposition filed by the respondent-Corporation on 18.07.2017, the learned counsel for the petitioner has submitted that though the land/joint family property has been stated to be mortgaged, such mortgage was not a lawful mortgage. She has drawn the attention of this Court to Section 58 of the Transfer of Property Act and has submitted that the ingredients required to constitute a lawful mortgage under the aforesaid provision are not present. The learned counsel has also drawn the attention of this Court to the documents allegedly submitted by the earlier borrower, namely, Shri Ratulmalla Buzarbaruah and the application submitted by the petitioner. This Court has noticed that while both the applications are of a similar pattern and dated 14.11.1984, the endorsement on the application of the petitioner is of 11.06.1985. The learned counsel has also submitted that though a payment schedule was allegedly notified, the petitioner did not have any knowledge of the same. Similar submission has also been made so far as the DP Note dated Page No.# 5/10

27.08.1987 is concerned. It is also averred that the earlier borrower had forcibly taken back the possession of the vehicle and in this regard, the learned counsel has referred to the averments made in paragraph 4 of the writ petition. She has also submitted that there are inconsistencies in the amount of loan concerned. By referring to the notices dated 18.04.1990, 16.03.1993 and 19.07.2008, the learned counsel has submitted that the respondent-Corporation is itself not certain about the loan amount which defers from every notice. She has also submitted that the notice dated 19.07.2008 was issued after a period of 18 years and clearly hit by limitation. The seizure list, dated 01.08.2008 annexed to the affidavit-in-opposition has also been highlighted and a perusal of the same would show that the name of the earlier borrower, viz, Shri Ratulmalla Buzarbaruah was struck off and the name of the petitioner was inserted by hand. The Deed of Guarantee dated 26.08.1987 and the Irrecoverable Power of Attorney dated 26.08.1987 allegedly executed by the father of the petitioner have been denied by submitting that the father of the petitioner was an old and frail person who was also blind and therefore, such Deeds were not possible to be executed. She has also submitted that apart from the fact that the father of the petitioner had expired almost in the same time in the year 1988, there were certain endorsements in the said Deed which itself will raise doubts on the bona fide part of the respondent-Corporation. She has also submitted that many documents which have been annexed to the affidavit-in-opposition would show that the dates were blank. By drawing the attention of this Court to the Limitation Act, more particularly, Articles 63 and 137, the learned counsel has submitted that the present action is, otherwise barred by the law of limitation. The learned counsel, accordingly submits that interference of this Court is warranted in the present case.

7. Per contra, Shri Kalita, learned Senior Counsel for the respondent-Corporation has submitted that the issues raised are factual in nature which are disputed by the Corporation and would, perhaps not be appropriate for a writ court to enter into. He Page No.# 6/10

has, otherwise submitted that the amount involved is public money and therefore, the Corporation had all the rights to institute a proceeding for recovery of the same. The learned Senior Counsel has categorically submitted that under Section 29 of the AFC Act, no period of limitation is prescribed. He has also submitted that this Court while passing the order dated 11.11.2014 in WP(C)/3474/2008 had made a specific observation giving liberty to the petitioner to approach the Corporation for settlement of the dispute and in spite of the same, the petitioner had failed to do so and therefore, would be precluded from approaching this Court again. By drawing the attention of this Court to the affidavit-in-opposition wherein, the order dated 11.11.2014 has been annexed, the learned Senior Counsel has submitted that irrespective of the fact that the petitioner was not represented, the copy of the order dated 11.11.2014 was marked to him and therefore, the petitioner cannot feign ignorance of the said order. He has also submitted that though the petitioner has made allegations of forgery, the same was never intimated to the Corporation and neither any police case filed and therefore, such allegation cannot be made at this stage. The learned Senior Counsel has also drawn the attention of this Court to various communications made by the petitioner and the earlier borrower which would bind the petitioner to the fact that the vehicle in question was, indeed transferred to the petitioner as a matter of fact. He has also submitted that the Deeds were registered before the appropriate authority and the petitioner had also executed a DP Note dated 27.08.1987. He has also highlighted the aspect that the liability was admitted which would also appear from the letter dated 20.03.2015 issued by the brother of the petitioner whereby, an admission was made regarding the loan in question. As regards the alleged inconsistencies in the amount demanded, the learned Senior Counsel has submitted that the notices are of different periods and it is only because of the interest factor that the amount has deferred. However, he submits that the original payment was Rs. 1,12,000/- which would appear from the documents annexed to the affidavit-in-opposition.

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8. He, accordingly submits that taking into consideration of the aforesaid facts and circumstances, the writ petition is liable to be dismissed.

9. The rival contentions have been duly considered and the materials on record, including the pleadings have been carefully examined.

10. It transpires that the present dispute originated from a move to finance the petitioner by the Corporation for taking a Minibus on hire purchase basis in the year 1987. It also transpires that the vehicle in question was not a new one but was owned by one Shri Ratulmalla Buzarbaruah and there is a communication dated 14.11.1984 by the said borrower expressing his inability to repay the Corporation and that he had found a buyer (petitioner), who was interested to have the Minibus and therefore, the loan account be transferred in the name of the petitioner. What, however is important to note that the vehicle in question was never transferred in the name of the petitioner at least, till 1994. The earlier action of recovery of the amount by taking into resort the Bengal Public Demand Recovery Act, 1913 had culminated in an order dated 27.01.1999 passed by the Bakijai Officer. The relevant observations made in the aforesaid order are extracted hereinbelow:

"I have Examined the letters of the Secretary of The Regional Transport Authority dated 27.06.94 vide letter No. R.T.A./N.S./128/94 and letter of the Transport Secretary dated 19.08.94 vide letter no. MV2/94/5/3384/STA. According to those letters the vehicle bearing no. AMK 3005 stands in the name of Ratulmalla Buzarbaruah upto 19.08.94. Ownership of the said vehicle has not been transferred in the name of Sri Ratna Goswami. According to the letter of the Secretary State Transport Authority Assam vide letter no. AMK 3005 Under HPA between AFC and Ratna Goswami, but said Sri Ratulmalla Buzarbaruah did not apply to transfer the ownership upto 19.08.94."

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11. It also appears that the Corporation did not take any steps towards challenging the aforesaid order which had attained finality. However, after about 9 years, the Corporation had taken an initiative for recovery which was the subject matter of challenge in the earlier writ petition instituted by the petitioner, being WP(C)/3474/2008 which was disposed of by this Court vide the order dated 11.11.2014. In the said order, which was passed in absence of the learned counsel for the petitioner, this Court had, however recorded the aspect of dropping of the Bakijai proceeding vide the earlier order dated 27.01.1999. This Court had, however also observed that the settlement policy which was sought to be invoked by the learned counsel for the Corporation could be resorted to by the petitioner for settlement of the loan amount. The petitioner claims that he was not aware of the order which is disputed by the Corporation. Without even going to the aforesaid aspect, what is of relevance is that there is nothing on record to show that the vehicle in question was ever transferred in the name of the petitioner. To the contrary, the available materials on record would show that the registered owner of the vehicle still continued in the name of the earlier borrower, namely, Shri Ratulmalla Buzarbaruah. The said aspect has not been able to be dislodged by any materials by the learned Senior Counsel for the Corporation.

12. As regards the various documents enclosed to the affidavit-in-opposition and relied upon by the Corporation, the learned counsel for the petitioner has denied the veracity and authenticity of those documents. This Court is, however of the view that such issues will be in the realm of disputed questions of fact and this Court would not be in a position to make any comment on the same.

13. Be that as it may, the relevant aspect concerning this present dispute is the aspect as to whether the vehicle in question was transferred in the name of the Page No.# 9/10

petitioner. As noted above, there is nothing on record to substantiate the claim that the vehicle was actually transferred in the name of the petitioner. In absence of any such material, the demand made by the Corporation, which is the subject matter of this writ petition, cannot be held to be sustainable. This Court has also noticed that the transaction relates back to the year 1987 and the Bakijai proceeding itself was dropped in the year 1999. Therefore, the present action, which has been initiated vide the notice dated 19.03.2015 is, otherwise barred by time.

14. In view of the above, this Court is left with no other alternative but to allow this writ petition.

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15. The writ petition accordingly stands allowed. The interim order passed earlier is made absolute.

JUDGE

Comparing Assistant