Uttarakhand High Court
WPMS/1706/2021 on 27 August, 2021
Office Notes, reports,
SL. orders or proceedings or
Date COURT'S OR JUDGES'S ORDERS
No directions and Registrar's
order with Signatures
27.08.2021
WPMS No. 1706 of 2021
Hon'ble Sharad Kumar Sharma, J.
Mr. Sunder Dhauni, Advocate, for the
petitioner.
Mr. Suyash Pant, Standing Counsel, for
the State/respondent Nos. 1 & 2.
Mr. Mahendra Singh Rawat, Advocate,
for the respondent/bank.
It is an admitted case of the petitioner,
that the petitioner is a borrower of a loan, which
was obtained by him by way of financial assistance
from the respondent/bank in the year 2011 and the
total advances then made by the bank for running
copper and iron industries was to the tune of Rs.
5,00,000/-. On account of subsequent commission
of default, the respondent had resorted to the
recovery proceedings, against the petitioner and
ultimately as a consequence thereto, after adjusting
the deposits which had been already made by the
petitioner, the respondent have issued a recovery
citation No. 220601 dated 15.05.2021 which is
under challenge in the present writ petition, and
simultaneously, he has also prayed for a writ of
mandamus to permit the petitioner to pay the total
amount due and sought to be recovered under the
recovery citation, by way of easy instalments.
Fixation of an instalment is not a
prerogative, which is contemplated to be exercised
by writ Courts under Article 226 of the
Constitution of India, but the judicial precedents
have only carved out an exception, that the Court
can exercise its discretionary power of fixing the
instalments, to mitigate a loan liability of the
borrower subject to the condition that the financial
institution i.e. the Bank respondent No. 3, herein
extends a consent before the Court, for accepting
the amount due to be paid in easy instalments. This
is what has been postulated by a judgment rendered
by the Division Bench of Allahabad High Court,
that fixation of the instalments would only be after
the consent of the financial institution or its
counsel, representing their case.
The fact that the petitioner is a borrower
and the outstanding loan amount due to be paid by
him is to the tune Rs. 5,97,574/- is a fact not denied
by the learned counsel for the petitioner. But in
order to express his bona fide that he is willing to
deposit the amount, the learned counsel for the
petitioner, has submitted at bar that in case if the
Court grants him certain reasonable time to remit
the entire dues, including the interest, within a
reasonable time frame, he would be complying
with those conditions and the coercive measures for
the time being may not be taken against him.
To this proposal, the counsel, for the
respondent/bank, Mr. Mahendra Singh Rawat, had
consented upon the proposal offered by the
petitioner to pay the entire loan amount in easy
instalments, hence on the basis of consensus
arrived at between the parties to the present writ
petition, this writ petition is being disposed of with
the following directions:-
The total amount of Rs. 5,97,574/- which
is being sought to be recovered, by the recovery
citation dated 15.05.2021, is being directed to be
remitted by the petitioner in easy instalments, as
per the direction has been fixed hereunder:
a) The 1st instalment would be deposited
by the petitioner, within a period of one month
from today of total amount of Rs. 1,50,000/-.
b) The balance amount left thereafter,
after the deposit of the 1st instalment, would be
remitted by the petitioner in three equal quarterly
instalments.
c) In the last instalment, which has been
thus directed to be deposited by the petitioner, it
would be obviously inclusive of the interest, which
has accrued between this period.
d) In an eventuality, if there is any default
in remittance of any of the instalments, as directed
above, it will be left open for the respondent bank
to enforce the recovery citation dated 15.05.2021,
for recovering the amount, which is due to be paid
by the petitioner.
However, it is made clear that in view of
the Allahabad High Court's judgment, as rendered
in the case of 'Asha Textiles', since merely
issuance of the recovery citation, may not be taken
as to be a process of recovery having been initiated
by the State, by utilising its machinery to recover
the amount and the auction in pursuance to it since
has not yet been taken, no recovery charges will be
levied on the petitioner, subject to the condition
that he complies with the above conditions.
Subject to above directions and
exceptions, the writ petition stands disposed of.
(Sharad Kumar Sharma, J.)
27.08.2021
Mahinder/
