CMPMO/564/2017 of M/S SURESH STONE CRUSHER AND OTHERS Vs THE REGISTRAR DEBTS RECOVERY TRIBUNAL-I AND ANOTHER on 29 December 2017

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLACMPMO No. 564 of 2017Decided on: 29.12.2017

Coram

The Hon’ble Mr.Justice Tarlok Singh Chauhan, Judge.Whether approved for reporting? No.

Justice Tarlok Singh Chauhan, Judge

(Oral)

This petition under Article 227 of the Constitution takes exception to the orders passed by the learned DebtRecovery Tribunal dated 31.08.2017 and 13.12.2017.

2. It is not in dispute that the petitioner has borrowedloan from respondent No. 2 and proceedings regarding recoveryof such loan are pending before the Debt Recovery Tribunal-I,Chandigarh by way of O.A. No. 605 of 2017. It appears thatrespondent No. 2 after learning that an award of compensationhad been passed in favour of the petitioner by the Collector LandAcquisition, NHAI (Special Land Acquisition Unit), Pandoh, DistrictMandi, moved an application for attachment of the award underOrder 38 Rule 5 of CPC for attaching the acquisition proceeds.

3. Learned Tribunal vide its order dated 31.08.2017allowed the application and directed the Collector LandAcquisition, NHAI (Special Land Acquisition Unit), Pandoh, DistrictMandi (H.P.) to remit the acquisition proceeds of the land directlyto the bank account of respondent No.2.

4. It appears that thereafter the petitioner moved anapplication for recalling of said order but there was a delay of 13days in filing the said application. Therefore, the Tribunal which isnot vested with powers to condone the delay, rejected theapplication as barred by 13 days vide its order dated 13.12.2017.

5. It is in this background, the present petition has beenfiled on the ground that the learned Tribunal has failed to consider and appreciate that the property of the petitioner already standsmortgaged with bank, therefore, the bank should first proceed torecover the amount out of the proceeds of the mortgagedproperty.

6. I am afraid that such contention cannot becountenanced for the simple reason that the petitioners hereinhave not denied that they have taken a loan from respondent No.2. The only dispute, if any, pertains to the actual amount which isdue and payable to respondent No. 2.

7. In such circumstances, once the debt is not disputedrather acknowledged, it is not for the debtor to claim that the creditor bank to proceed against certain other terms of securedassets initially and then to proceed to attach the award passed infavour of the petitioner. The law is well settled that the debtorcannot dictate to the creditor as to the manner in which the debtis to be recovered. It is for the secured creditor to choose the bestand easily realizable mode of recovery of debt as permitted underlaw. (Refer: The Bank of Bihar Ltd. vs. Dr. Damodar Prasadand Anr. AIR 1969 SC 297, State Bank of India vs. M/sIndexport Registered and others (1992) 3 SCC 159 andIndustrial Investment Bank of India Ltd. vs. BiswanathJhunjhunwala (2009) 9 SCC 478).

8. The creditor bank which deals with public money owesa duty and responsibility to the public at large to see that itsdebts are sufficiently secured and the same are realized asexpeditiously as possible. In case of violation of terms of thefacilities, all legally permissible mode of recovery are available tothe creditor. There is no equity to contend otherwise because theprinciple of equity is not a one sided formula.

9. It is not in dispute that the recovery suit so filed byrespondent No. 2 is for recovery of Rs.32,52,441/- whereas theentire award amount is only less than Rs.16,00,000/- i.e. nearlyhalf of the amount which according to respondent No. 2 is due towards it. In such circumstances, I find no grounds to have been made out for quashing either of the orders assailed herein.

10. Accordingly, there is no merit in this petition and the same is dismissed.

December 29, 2017 sanjeev

(Tarlok Singh Chauhan), Judge.