- (1.) LEARNED counsel for the parties agree that revision petition be decided on merits
(2.) PETITIONER is an agriculturist. He took loan for a sum of Rs. 52,000/- from the Oriental Bank of Commerce (in short/the Bank') in order to purchase a tractor. He mortgaged his land measuring 85 Kanals 11 marlas by mortgage deed with the Bank on 3-10 1980. The loan was disbursed on 6-10-1980. The Petitioner did not pay the amount according to the terms of the mortgage. The Bank instead of filing a rugular civil suit under Order 34, Rule 1, of the Code of Civil Procedure, filed an application under Sub-section (1) of Section 8 of the Haryany Agricultural Credit Operations and Miscellaneous Previsions (Banks) Act, 1973, (in short, 'the Act') before the prescribed Authority. The Prescribed Authority allowed the application of the Bank. The operative part of the order dated 16. 7. 1984 reads as under : - "i have heard the ex-parte arguments and have perused the file. It is proved from Ex-P-1 that a sum of Rs. 78527-87 is due against the respondent. From Ex-P-2 it is proved that the respondent took the loan from the Bank and his land was mortgaged in favour of the Bank. There is no rebuttal of documents produced on behalf of the Bank and hence, a decree for a sum of Rs. 78527-87 is passed in favour of the Bank and against the respondent. The Bank would be entitled to recover this amount with interest and expenses by putting to auction the land of the petitioner under mortgage. " Despite the passing of this order, the petitioner did not make the payment The Bank filed an execution application in order to recover the amounts by putting to auction the land of the petitioner which was under mortgage Before the land could be auctioned the petitioner appeared before the prescribed Authority on 27. 5. 1986 and undertook to pay the entire decretal amount by way of four instalments. The first instalment of Rs. 15,008/-was paid in time The petitioner again' defaulted and the Bank became entitled to recover the decretal amount. However, the petitioner continued to pay some amount from time to time to the Bank and upto 25. 6. 1990 as per both the counsel, a sum of Rs. 63,000/. which includes Rs. 15,000/- paid as first instalment, stood paid to the Bank. Thereafter, the Bank instead of resorting to the provisions of the Act for the realisation of the amount, filed a civil suit under Order 34 of the Code of Civil Procedure, for recovery of the amount An objection was raised by the petitioner that the civil suit is not competent in view of the order passed by the prescribed Authority on an application filed by the Bank under Sub-section (1) of Section 8 of the Act. The, trial Court relying on the judgment of the Kerala High Court reported at Canara Bank v. Thankappan, 1990 L. S. J. (Banking) 76 (Ker.) declined to entertain the objections of the petitioner and held that the civil suit is competent. This order is being impugned toy the petitioner in the present revision petition.
(3.) AT the time when the revision petition came up for motion hearing, a direction was given to the Prescribed Authority to sell the property of the petitioner (judgment debtor) mortgaged with the Bank. After passing of this order, a miscellaneous application was filed by the petitioner for modification of the said order on the ground that a part of the property may be sold as the same would be sufficient to meet the entire decretal amount. This prayer was accepted and the petitioner was permitted to sell a part of the property for payment to the Bank. The petitioner also undertook to bring the amount on the next date of hearing. Subsequently, a sum of Rs. 50,000/- was paid by the petitioner to the counsel for the Bank in this Court. In all, a sum of Rs. 1,13,000/- has been paid for a loan of Rs. 52,000/- which the petitioner took for purchasing a tractor. Learned counsel for the petitioner has contended that once an order as passed by the Prescribed Authority, Civil Suit for the same relief is not competent. In reply to this, Mr. Ashwini Kumar Chopra, Advocate, for the Bank has vohomently argued that provisions of the Act do not bar the filing of a civil suit. ' He also made a reference to Order 7, Rule 11 of the Code of Civil Procedure, to contend that the plaint does not contain any averment to show that the suit barred by law.;