- (1.) Heard Learned Counsel for the parties. Petitioner has challenged the certificate proceeding including order dated 21.11.2005 pursuant to which petitioner was arrested in Certificate Case No. 105 of 1996-97 in connection with Requisition dated 8.8.1996 for recovery of Rs. 3,30,901.60/- with interest and incidental costs as against the agricultural loan for supplying tractor, cultivator, hood and trailer.
(2.) Contention of the petitioner is that his late father, Gajadhar Thakur had made an application in the month of April, 1991 for grant of loan for purchasing the tractor, trailer, hood and cultivator for agricultural purpose for which he submitted various documents showing himself as owner of the lands and deposited the margin money in the bank. Bank, thereafter, granted loan of Rs. 1,40,000/- to the petitioner's father and petitioner had also signed as guarantor on the papers executed by his father with the bank. Certain drafts were made to be deposited with the dealer and subsequently, the father of the petitioner received a Swaraj Tractor Engine without the important parts of the tractor i.e. trailer, cultivator and hood. A complaint case was filed alleging the criminality against the dealer and the Manager of the Bank, which was registered as Borio P.S. Case No. 188 of 1991. For recovery of the aforesaid dues respondent no. 3, Branch Manager, S.B.I. filed a requisition in Certificate Case No. 105 of 1996-97 before the Sub Divisional Certificate Officer, Sahibganj for recovery of Rs. 3,30,901.60 along with costs, charge and interest. The said requisition is at Annexure-17 to the writ petition and Annexure-e to the counter affidavit. It is submitted by the counsel for the petitioner that petitioner further filed objection petition before the Certificate Officer stating that criminal case being Borio P.S. Case No. 188 of 1991 is pending in which cognizance has been taken against the proprietor of 'Ma Chanda Industries' and Branch Manager, S.B.I., but the said objection was rejected. It was further submitted on behalf of the petitioner that his father also filed petition in the court of certificate officer stating that the bank did not file the requisite court fee and process fee Suddenly on 13.7.1998, the police reached the house of the petitioner's father to execute distress warrant, but he was not present there and after coming to know about the aforesaid facts his father died out of shock on 14.7.1998. Thereafter, respondent no. 3 filed a substitution petition for substitution of the present petitioner in place of his deceased father. Thereafter, notices were issued on 23.5.2000. It is submitted that petitioner's application before the Certificate Officer was rejected and subsequently, bailable warrant was ordered to be issued against the petitioner vide Annexure 29. Petitioner was arrested on 18.12.2005 and provisionally released on bail on the condition that all the dues must be deposited within a month. It was the contention of the petitioner that no certificate has been prepared and signed by the Certificate Officer, Sahibganj pursuant to the requisition and more over, the obligation under the agreement was not discharged by the bank and the contract was never concluded.
(3.) Respondent- Bank have appeared and filed their counter affidavit in which it has been stated that the bank draft against the loan was issued in favour of the supplier as agricultural loan to the petitioner's father and the borrower received the tractor on 4.6.1991 and the trailer was not received due to some defect but ultimately received on 24.2.1992 as per the office record. Respondents have denied that the supplier has not supplied the trailer and accessories. When the borrower failed to take interest in depositing the amount bank filed certificate case against the guarantor and the present petitioner on 8.8.1996 for recovery of the due amount of Rs. 3,30,901.60. Notices were issued upon borrowers, who appeared and filed petitioner for stay which was rejected by the Certificate Court on the same day. However, borrower never filed objection petition as per section 9 of the Public Demands Recovery Act within time and distress warrant was issued on 4.2.1997 (Annexure-22). However, in the meantime the borrower, Gajadhar Thakur died on 14.7.1998 and his legal heirs, the present petitioner, guarantor and one Raj Kishore Thakur were substituted by Annexure-24 and 25 and notices were issued. Upon notice the legal heirs filed objection petition dated 11.7.2000. Bank also filed rejoinder on 5.3.2001. Since legal heirs never showed any interest for hearing of the case, learned court rejected the petition of the certificate debtor (Annexure-28) and bailable warrant was issued on 21.11.2005, where after the present petitioner being the certificate debtor was arrested on 18.12.2005 and produced before the Sub Divisional Officer, Sahebganj. From the reference of the order passed after production of the petitioner after his arrest dated 18.12.2005(Annexure-30), it is submitted that upon the undertaking of the certificate debtor, the certificate court granted him 1 month time to deposit the due amount. Instead of honouring his undertaking petitioner has moved this Court by way of filing the writ petition. The submission made in para 42 of the writ application that no certificate in Form 2 has been prepared and signed by the certificate officer has been denied by the respondent in their statement made in the counter affidavit at para 50.;