Paramjeet Singh, J.@mdashRSA No. 2038 of 2014 titled Surinder Singh v. Haryana Financial Corporation and others and RSA No. 2039 of
2014 titled Devi Ram v. Haryana Financial Corporation and others arise from common impugned judgment and decree dated 13.12.2013 passed
by the Appellate Court, therefore, both the second appeals are being disposed of by this common judgment. For convenience sake, facts are being
taken from RSA No. 2038 of 2014 and reference to parties is being made as per their status in the civil suit i.e. appellant as plaintiff and
respondents as defendants.
2. This regular second appeal is directed against the judgment and decree dated 13.12.2013 passed by the learned District Judge, Jind, whereby,
the appeal filed by the respondents/defendants against the judgment and decree dated 17.05.2012 passed by the learned Civil Judge (Sr.
Division), Jind has been allowed and judgment and decree dated 17.05.2012 decreeing the suit of plaintiff has been set aside and suit of plaintiff
has been dismissed.
3. The detailed facts of the case are already recapitulated in the judgments of the Courts below and are not required to be reproduced. The brief
facts relevant for decision of this second appeal are that the plaintiff along with four others namely Rajinder Bhardwaj, Manoj Kumar, Baru Ram
and Surender Singh formed partnership firm under the name and style of M/s. Luxmi Tube Products on 18.09.1991 and raised a loan of Rs. 43.60
lacs from defendant No. 1 for establishing the industry. Out of the said amount, only a sum of Rs. 40.21 lacs was disbursed as per security
documents dated 23.11.1992. Thereafter, the firm was dissolved on 17.02.1994. On the same date, said Manoj Kumar reconstituted the firm with
same name and the remaining partners of the firm and Jai Gopal Sharma, Ravinder Kumar and Manoj Kumar son of Ram Bilas Sharma also joined
the firm on the said date. The said change of management was got incorporated in the office of Registrar and defendant No. 1 accepted the same
and also recorded the same in its records. Thereafter, plaintiff had no concern with the firm. It was pleaded that plaintiff and other partners who
had retired had no liability to pay the loan amount of Rs. 10 lacs sanctioned on 26.05.1995. Otherwise also after expiry of period of 12 years suit
for recovery was barred by limitation. Hence the plaintiff filed suit for permanent injunction restraining the defendants from arresting or detaining the
plaintiff for recovery of any amount shown to be outstanding against M/s. Luxmi Tube Products, Bhiwani and from effecting any recovery from him
as a land revenue.
4. Upon notice, the defendants put in appearance and filed written statement by taking preliminary objections with regard to the maintainability of
the suit, concealment of true facts and cause of action as well as jurisdiction etc.
5. On merits, it was averred that plaintiff along with other partners had approached defendant No. 1 for a loan of Rs. 43.60 lacs for the purpose of
installing the industry. Out of the said amount only a sum of Rs. 40.21 lacs was disbursed as per security documents dated 23.11.1992 and a
mortgage deed was also executed in this regard in favour of defendant No. 1 on 23.11.1992. The plaintiff and other partners are responsible for
repayment of loan. It was further averred that the plaintiff and other partners are responsible and legally bound to make the payment of outstanding
amount to the tune of Rs. 17,47,04,037/- as on 01.06.2011 with interest @ 24 % per annum. It was further averred that the remaining amount can
be recovered as arrears of land revenue u/s 32-G of the State Financial Corporations Act.
6. In order to controvert the averments made in written statement, the plaintiff filed replication reiterating the averments made in plaint and denying
the averments made in written statements. On the basis of pleadings of parties, the Court of first instance framed the following issues:
(1) Whether the plaintiff is entitled for decree of permanent injunction on the ground mentioned in the plaint? OPP
(2) Whether the suit of the plaintiff is not maintainable in the present form? OPD
(3) Whether plaintiff has concealed the true and material facts from the court? OPD
(4) Relief.
7. After appreciating the evidence, the Court of first instance decreed the suit of the plaintiff to the effect that plaintiff could not be
arrested/detained for recovery of amount except in due course of law. Against the judgment & decree of court of first instance two separate
appeals were filed one by plaintiff and another by defendants. Appeal preferred by the plaintiff/appellant has been dismissed by the lower
Appellate Court, whereas, appeal filed by the defendant has been allowed and suit of plaintiff has been dismissed. Aggrieved, against the same the
plaintiff/appellant has filed the present second appeal.
8. Learned counsel for the appellant submitted that following questions of law, formulated in grounds of appeal, arises for consideration:
1. Whether the loan in the name of partnership firm Luxmi Tube Products could be bifurcated-one to be recovered from retired partners and the
other from the continuing partners?
2. Whether the loan could be recovered from the plaintiff who retired from the partnership firm on 17.02.1994 and the defendant Corporation was
informed of the same?
3. Whether the loan qua plaintiff had become time barred as there was no acknowledgement after 17.02.1994 and recovery certificate issued on
30.10.2008?
4. Whether the findings of the courts below are perverse?
9. I have heard learned counsel for the appellant and perused the record.
10. Admittedly, the recovery is being effected from the plaintiff as arrears of land revenue and recovery certificate has been issued by the
competent authority in view of Section 67 of Punjab Land Revenue Act, 1887, as applicable to Haryana (hereinafter the Act). Section 67 of the
Act reads as under:
67. Processes for recovery of arrears: Subject to the other provision of this Act, an arrears of land revenue may be recovered by any one or more
of the following processes, namely:-
(a) by service of writ of demand on the defaulter;
(b) by arrest and detention of his person;
(c) by distress and sale of his movable property and uncut or ungathered crops;
(d) by transfer of the holding in respect of which the arrear is due;
(e) by attachment of the estate or holding in respect of which the arrear is due;
(f) by annulment of the assessment of that estate or holding;
(g) by sale of that estate or holding;
(h) by proceeding against other immovable property of the defaulter.
11. Now the question arises whether injunction can be granted for restraining recovery of amount due as arrears of land revenue and whether the
civil suit is maintainable in this regard. In this context, it would be fruitful to reproduce Section 78 of the Act which reads as under:
78. Remedies open to person denying his liability for an arrear:
(1) Notwithstanding anything in section 66, when proceedings are taken under this Act for the recovery of an arrear, the person against whom the
proceedings are taken may, if he denies his liability for the arrear or any part thereof and pays the same under protest made in writing at the time of
payment and signed by him or his agent, institute a suit in a civil court for the recovery of the amount so paid.
(2) A suit under sub-section (1) must be instituted in a Court having jurisdiction in the place where the office of the Collector of the district in which
the arrear or some part thereof accrued is situate.
12. Section 78 prescribes the remedies open to a person denying his liability for an arrear and according to this Section, when proceedings are
taken under this Act for the recovery of an arrear, the person against whom the proceedings are taken may, if he denies his liability for the arrears
or any part thereof, and pays the same under protest made in writing at the time of payment and signed by him or his agent, institute a suit in a Civil
Court for the recovery of the amount so paid. Meaning thereby that it was obligatory on the part of the plaintiff to deposit at the first instance the
amount of the demand made by the defendant under protest and then he could challenge the demand by way of separate suit.
13. Admittedly, the plaintiff has not deposited the said amount. Sub-Section (xiv) of Section 158 of the Punjab Land Revenue Act lays down that
a Civil Court shall not exercise jurisdiction over any of the matters namely, any claim connected with, or arising out of, the collection by the
Government, any process for the recovery of land revenue, or any sum recoverable as an arrear of land revenue. This Section, thus, again bars the
suit of the plaintiff to be instituted in the Civil Court.
14. Admittedly in the instant case the recovery is sought to be effected u/s 67 of the Act. Although the appellant/plaintiff is alleging that the
recovery certificate is illegal but finding of fact has been recorded by the learned Lower Appellate Court that plaintiff was having full knowledge of
the amount due and despite issuance of various notices no payment was made by either of the partners. The factum of advancing of loan is
admitted and defendant has every right of recovery of outstanding amount.
15. In these circumstances the civil suit for injunction restraining recovery will not lie. In this regard, reference may be made to judgment of this
Court in State of Punjab v. Tarlochan Lal; State of Punjab and Another Vs. Tarlochan Lal, .
16. Finding of facts have been recorded by learned Lower Appellate Court. Learned counsel for the appellant could not show that which part of
evidence has not been read or misread. As such the impugned judgments and decrees do not suffer from any illegality or perversity.
17. No question of law, muchless substantial question of law, as alleged, arises in the present appeal for consideration.
18. No other arguments have been raised by the learned counsel for the appellant.
19. Dismissed in limine.
