Amitava Roy, J.
1. The petitioner herein has assailed the maintainability of the proceeding being Certificate Case No 4559/96-97 pending before the Certificate Officer, Nagaon and, inter alia, the order dated 10.11.1998 passed therein.
2. I have heard Mr. K. Agarwal, learned counsel for the petitioner and Mr. S. Dutta, learned counsel for the respondent No 3. None appeared for the other respondents.
3. Filtering out the details, the facts in brief as can be gathered from the pleadings of the parties are that the petitioner is the proprietor of M/s Khetawat Rice and Atta Mills, a small scale Industrial Unit, registered with the Directorate of Industries, Government of Assam. The said firm holds a permanent Registration Certificate. The respondent Bank on 21.11.1997 submitted a requisition against the petitioner for realisation of a sum of Rs. 2,44,057.85 before the Certificate Officer, Nagaon, respondent No 2. It was alleged in the said requisition that the petitioner had applied for granting of working capital loan of Rs. 1,00,000 in the name of the Mill for "industrial activities and purposes" within the meaning of Section 2(c) of the Assam Recovery of Loan Act, 1976, (hereinafter referred to "the Act of 1976") and that the said loan was sanctioned on 18.3.1989. Though the petitioner agreed to repay the same with interest and executed a number of documents in favour of the respondent Bank to secure the loan, he in spite of repeated demands failed to do so. The petitioner, however, acknowledged his liability in the relevant Income-tax returns including return of 1997-98. On the consistent failure on the part of the petitioner to clear the outstanding dues, the respondent Bank, therefore, submitted, the requisition before the Certificate Officer, Nagaon, for realisation thereof. According to the petitioner, the Certificate Officer thereafter signed the certificate in the purported exercise of power under Section 6 of the Bengal Public Demand Recovery Act, 1913 (hereinafter referred to as "the Act of 1913") and a certificate proceeding being No. CC-4559/96-97 was initiated and an order was passed therein requiring the petitioner to show cause against the demand. Though the said notice was not served on the petitioner, he having come to know of the pendency of the proceeding filed his petition denying his liability. In the said petition, the petitioner challenged the jurisdiction of the Certificate Officer to entertain the requisition and initiate the proceeding under the provisions of the Act of 1913. He also denied his liability to pay the amount said to be in arrears. He, inter alia, contended that the sum of Rs. 2,44,057.85 was not "public demand" under the Act of 1913 and, therefore, the provisions thereof could not have been invoked for the recovery of the said sum. It was further contended that the certificate was not signed in the prescribed manner and the recovery of the demand through a suit being barred by law, the proceeding before the Certificate Officer was similarly barred. He even contended that he had not received Rs. 2,44.057.85 or any other amount from the respondent Bank and that, therefore, the question of recovery from him did not arise. He took a stand in the petition that the entire proceeding was void ab initio being beyond the purview of the Act of 1913.
4. The writ petition discloses that in reply the respondent No, 3, the certificate holder also submitted its written statement. It was asserted that the certificate debtor had not submitted its objection within 30 days of the notice and on that ground alone his written statement was liable to be rejected. Its stand was that the requisition was submitted for recovery of the loan in accordance with the provisions of the Act of 1976 and accordingly, the Certificate Case No. 4559/96-97 was validly initiated. According to the certificate holder, the written requisition was submitted in the prescribed form after being verified and signed by the Branch Manager who was competent to do so. It was further contended that the requisite Court Fees had been paid and the demand was recoverable under the Act of 1976. The certificate holder also referred to Office Memorandum No. PIFB/87/80 dated 9.6.1992 of the Government of Assam to assert that the Bank loans were recoverable as public demand and reiterated that the claim made in the requisition was legally recoverable from the petitioner, certificate debtor.
5. The Certificate Officer thereafter heard the parties and by order dated 10.11.1998 (impugned in the instant proceeding) observed that the certificate debtor has deliberately avoided repayment of the loan despite having sufficient means and in spite of reminders and that the objections raised by him were not tenable. By the said order, the certificate debtor/petitioner was asked to pay a sum of Rs. 2,000 from the next month fixing the next date of the case as 10,12.1998.
6. The petitioner has challenged the validity of the certificate case and the impugned order dated 10.11.1998, inter alia, on the ground, that the alleged loan was not recoverable as public demand and, therefore, initiation of the proceeding under the Act of 1913 was ex facie without any authority of law and consequently the impugned order dated 10.11.1998 is without jurisdiction. According to the petitioner, an amount due to the Bank or a financial institution can be recovered from a person under the provisions of the Act of 1913, if the same has been advanced or granted under a scheme framed and/or approved by the State Government for the purpose of providing opportunity for employment or assisting agricultural or industrial activities or purposes but as in the case in hand there is nothing on record to even suggest that the alleged loan was advanced under any such scheme for one or more of the purposes enumerated hereinabove, the claim of the respondent Bank could not by any stretch of imagination be brought within the sweep of public demand recoverable under the Act of 1913. Further, as the alleged loan could not have been recovered on public demand, the certificate officer had no jurisdiction to entertain the requisition and initiate the certificate proceeding. It is also the case of the petitioner that the requisition submitted by the respondent Bank was neither in the prescribed form not was verified in the manner prescribed. The petitioner has also assailed the certificate proceeding on the ground that the respondent Bank had not paid the prescribed fee and that as the alleged demand if sought to be recovered by a suit is also barred by the law of limitation, the Certificate Officer acted mechanically in initiating the certificate proceeding without applying her mind to that aspect of the matter. The petitioner even has questioned the authority of the Officer acting as the Certificate Officer within the meaning of Section 2(c) of the Act of 1976. The impugned order dated 10.11.1998 has been assailed also on the ground that the same had been passed without making any enquiry by the Certificate Officer to satisfy herself that the demand was recoverable under the Act of 1913 and that the same is in breach of the mandatory provision of Section 10 of the said Act.
7. While controverting the stand taken by the writ petitioner as above, the respondent No. 3, in his affidavit has, inter alia, contended that the writ petition was not maintainable, inasmuch as, there is an alternative remedy of appeal under Section 51 of the Act of 1913 read with Section 4 of the Act of 1976. It was asserted that the loan was sanctioned to the petitioner for industrial activities and purposes in respect of his mill which is small scale industrial unit registered with the Government. By the notification dated 9.6.1992 (referred to above), the Finance Department of the Government of Assam, approved every scheme of the Bank as defined in Section 2 of the Assam Recovery of Loan (Amendment) Act, 1977, for assisting within Assam any agricultural activity and purpose as defined in Section 2(a) of the Act of 1976, or for any industrial activity and purpose as defined in Section 2(e) thereof, and, therefore, the said loan was recoverable from the petitioner under the Act of 1913, It was further contended that the Commissioner Lower Assam Division, Government of Assam, by order No. RR/114/92/61, dated 5.7.1992 has accorded sanction for appointment of IAS/ACS officers under the provision of Section 3(2) of the Act of 1913 by the Deputy Commissioner of the Districts and accordingly. Smt. Indrani Laskar, was appointed as Certificate Officer by the Deputy Commissioner, Nagaon. According to the answering respondent, the certificate was signed and verified by the Chief Manager, Nagaon Branch of the respondent Bank who was authorised to file such requisition. The said respondent asserted that the requisition was filed in proper form and requisite Court Fee was attached it was contended that the order dated 10.11.1998 was wholly within the jurisdiction of the Certificate Officer and was legally valid in all respects. According to the respondent Bank, loan was sanctioned to the petitioner under its scheme for financing the small scale industrial units approved by the notification dated 9.6.1992 for the purpose of industrial activities and providing goods and services and such loan was recoverable under the provisions of the Act of 1913.
8. In the affidavit in reply filed by the petitioner, he while generally reiterating the contentions raised in the writ petition averred that the remedy provided under Section 51 of the Act of 1913 read with Section 4 of the Act of 1976 was not an efficacious one and, therefore, could not be said to be an alternative remedy. It was further stated that the notification dated 9.6.1992 even if, assumed to be relevant to attract the provisions of the Act of 1913 and the Act of 1976, it would have a prospective effect and, therefore, could not be made applicable to the loans sanctioned and disbursed before the date thereof. The alleged loan having been sanctioned and released in the year 1989, the notification dated 9.6.1992, therefore, has no application to the facts of the present case. He categorically denied that the alleged loan was sanctioned to him under any of the schemes of the Bank for financing a small scale industrial unit for the purpose of industrial activities and providing goods and services. He, therefore, reiterated the claim made by the respondent Bank was clearly not recoverable as public, demand under the Act of 1913.
9. Mr. Agarwal, learned counsel for the petitioner, in support of the contentions raised in the writ petition has argued that the impugned; proceeding pending before the Certificate Officer, Nagaon, and the impugned order dated 10.11.1998 are, ex facie, not maintainable in law and are liable to be quashed. Inviting the attention of the Court to Section 3(6) of the Act of 1913 along with the Schedule I thereto as well as Sections 2(c), 2(e), 2(6) and 3 of the Act of 1976, the learned counsel urged that the alleged claim of die respondent Bank cannot be conceived of as public demand recoverable under the Act of 1913 and, therefore, the impugned proceeding and the order referred to above suffers from want of jurisdiction. Referring to the document filed by the respondent Bank before the Certificate Officer (Annexure - 4 of the writ petition), the learned counsel contended that there was nothing therein to indicate that the alleged loan had been advanced to the petitioner under a scheme for providing opportunities for employment or for assisting agricultural or industrial activities and purposes as contemplated under Section 2(h) of the Act of 1976 making it recoverable in terms of Section 3 thereof. He maintained that till this stage of the proceeding the Certificate holder has not produced any such scheme to justify its claim as a public demand under the Act of 1976, No record indicating approval of any of such scheme by the State Government has been produced either, Referring to the notification dated 9.6.1992, Annexure- B to the affidavit filed by the respondent No. 3, the learned counsel argued that even assuming that thereby every scheme of a bank for assisting any agricultural activity or for industrial activities and purposes as mentioned therein had been approved by the State Government for the purpose under Section 3 of the Act of 1976, the said notification is clearly not applicable to the case of the petitioner as admittedly the alleged loan had been advanced to him in the year 1989, i.e., much prior to the issuance of the said notification. According to the learned counsel, the notification could not be given retrospective effect to bring within its sweep loan advanced before the issuance thereof. In any case, he argued that the notification did not specify any scheme in particular and as the respondent Bank in the instant case has failed to produce any scheme whereunder the alleged loan had been advanced to the petitioner, the said notification was of no relevance or significance for the present case.
10. Mr. Agarwal next argued, that the requisition submitted on behalf of the respondent Bank in view of Section 5 of the Act of 1913 read together with the Form 2 of the Appendix of the said Act would clearly reveal that the same was not in the prescribed form and on that ground alone the demand made by the respondent Bank ought to have been held not tenable in law. According to him, the requisition was also not properly verified and signed in terms of the requirement of Schedule II of the Rules framed under the Act of 1913. The prescribed Court Fee for the demand had also not been paid in violation of Section 5 of the said Act. The learned counsel further urged that the view expressed by the Certificate Officer in the Certificate dated 27.3.1998 that the sum mentioned therein was recoverable and was not barred by law of limitation was wholly mechanical, inasmuch as, admittedly the alleged loan was advanced on 18.3.1989 and the requisition demanding the recovery thereof bad been made only on 21.11,1997. According to the learned counsel, the alleged loan being one advanced by the respondent Bank, the appropriate legal proceeding for, recovery thereof is required to be instituted within 3 years from the date of disbursement of the said loan and thus the certificate issued by the Certificate Officer was patently illegal and not sustainable in law and is liable to be adjudged as such. Turning to the impugned order dated 10.1L1998, the learned counsel submitted that it is apparent therefrom that the same has been passed without any application of mind in violation of the mandatory requirements of Sections 9 and 10 of the Act of 1913 and this having vitiated the same to its core the same is liable to be quashed. Referring to Section 3(3) of the Act of 1913 and Section 2(c) of the Act of 1976 which define "Certificate Officer", the learned counsel has argued that the person who signed the certificate and had passed the impugned order was not a Certificate Officer as contemplated by the enactments referred to above and, therefore, the impugned proceeding and order are nonest in law. The learned counsel urged that in spite of specific contentions being raised in this regard in the writ petition, the State respondents have preferred not to file any counter controverting the same. On the other hand, the respondent Bank in its affidavit while contending that the authority issuing the certificate and passing the impugned order was a Certificate Officer has produced the order dated 5.7.1992 whereby sanction had been accorded in favour of IAS/ACS Officers under the control of the Deputy Commissioner/Sub-Divisional Officer of any district within the Lower Assam Division for their appointment by the Deputy Commissioner of the District under Section 3(3) of the Act of 1913 to perform duties of Certificate Officer thereunder. The learned counsel has maintained that this order in any case does not advance the case of the respondent, inasmuch as, the same is not an order appointing the authority who had signed the certificate and had passed the impugned order in the certificate proceeding under challenge as the Certificate Officer under the Act of 1913. In all, according to the learned counsel, the impugned proceeding is an abuse of the provisions of the Acts whereunder the demand has been purportedly made and, therefore, it is a fit case in which this Court in exercise of its powers under Article 226 of the Constitution should quash the impugned proceeding and the order dated 10.11.1998. In support of his submissions Mr. Agarwal has placed reliance on the following decisions of this court in the case of Md. Anowar Ullah v. Assam Board of Revenue (1988) 2 GLR 424, Gopal Chandra Deuri v. The State of Assam and Ors., (1990) 1 GLR 93, Jyotirmoy Bhattacharjee v. United Bank of India and Anr., (1991) 2 GLR 39 and Sukumar Debnath v. State of Assam and Ors., 2001 (1) GLJ261.
11. Per contra, Mr. S. Dutta, learned counsel for the respondent Bank, while supporting the impugned certificate proceeding and the order dated 10.11.1998 passed therein has contended that the petitioners small scale industrial unit was registered with the Directorate of Industries, Government of Assam, engaged in industrial activities and the loan having been advanced to it for the said purpose, the same was clearly recoverable as public demand under Section 3 of the Act of 1976 read with relevant provisions of die Act of 1913. He argued that the writ petition is not maintainable, inasmuch as, an alternative remedy was available by way of an appeal under Section 51 of the Act of 1913. The learned counsel in course of the arguments produced a booklet containing lending schemes of the respondent Bank including those available for the small scale industries and argued that in view of the notification dated 9.6.1992 approving of the schemes of a bank for advancing loan, the arrear of the loan advanced to the petitioner was recoverable as public demand under Section 3 of the said Act. The learned counsel argued that similarly by virtue of the notification dated 9.6.1992, the provisions of the Art of 1976 was extendable to the loan advanced to the petitioner and, therefore, the requisition submitted before the Certificate Officer for recovery of loan amount from the petitioner under the Act of 1913 was legal and valid in all respects. He contended that the authority signing the certificate, initiating the certificate proceeding and passing the impugned order was the Certificate Officer under the Act for all intents and purposes and the contentions raised with regard to procedural defects in the proceeding are without any basis whatsoever and are liable to be rejected in limine. With regard to the plea of limitation, the learned counsel urged that it was a mixed question of law and facts and, therefore, the same should not be entertained by this Court. According to the learned counsel, the loan was advanced to the petitioner's mill as a small scale industrial unit for assisting it in its industrial activities and if it had failed to pay the arrears, the respondent Bank was wholly within its right to initiate an appropriate proceeding under the law to realise the same and, therefore, the petitioner cannot have any grievance in that regard. The learned counsel asserted that by initiating the impugned proceeding no legal right of the petitioner has been violated and, therefore, there being no cause of action, the writ petition should, be rejected outright According to Mr. Dutta, the ratio of decision of this Court in Gopal Chandra Deuri v. The State of Assam and Ors. (supra) was not applicable as the notification dated 9.6.1992 was not in existence when the said case was decided. In support of the submission Mr. Dutta placed reliance on the following decisions of the Apex Court in United Bank of India v. Naresh Kumar and Ors., (1996) 6 SCC 660, Haryana Financial Corporation and Anr. v. Jagadamba Oil Mills and Anr., (2002) 3 SCC 496 and Director of Settlements, AP and Ors. v. MR Apparao and Anr., AIR 2002 SC 1598.
12. In reply Mr. Agarwal, learned counsel, submitted that alternative remedy under Section 51 of the Act of 1913 was not an efficacious one, inasmuch as, under the said provisions of the Act, the petitioner was required to deposit 50% of the amount mentioned in the certificate. Moreover, the petitioner in the instant case has assailed the very jurisdiction of the authority in initiating the certificate proceeding and the impugned order dated 10.11.1998. He strongly contended that in absence of any document relating to the loan indicating the purpose for which the same was advanced, it was not permissible for the respondent Bank now to produce its schemes and bring its claim within the ambit of public demand. According to him, reading the language of the notification dated 9.6.1992, it is clear that it is of prospective effect and has no relevance so far as the alleged claim of the respondent Bank is concerned. The claim made by the respondent Bank being not in consonance with the requirement of the Act of 1976 it cannot be realised as public demand.
The plea of alternative remedy pressed into service for contending that the writ petition is not maintainable in the facts and circumstances of the case is not acceptable. The sustainability of the certificate proceeding has been questioned. Several contentions issues have arisen which deserve scrutiny. The writ petition has been admitted in the year 1999. Alternative remedy does not conclusively operate as a bar to the exercise of the jurisdiction of this Court under Article 226 of the Constitution of India. It is largely a matter of discretion whether the High Court should or should not exercise its extraordinary jurisdiction. Considering the contentions raised in the petition, I am not inclined to non suit the petitioner in the above premises. The objection to the maintainability of the writ petition therefore fails.
13. The core issue which thus pleads for adjudication is whether the claim of the respondent Bank is recoverable as public demand as contemplated under Section 3 of the Act of 1976 by resorting to the provisions of the Act of 1913.
"Public Demand" has been defined in Section 3(6) of the Act of 1913 as follows :
"'public demand' means any arrear or money mentioned or referred to in Schedule I and includes any interest which may, by law be chargeable thereon up to the date on which a certificate is signed under Part II"
14. Following the definition as above an immediate reference to Schedule I of the said Act is necessary. Having regard to the fact that the claim in the instant case is for recovery of loan advanced by a Bank paragraphs (3) and (4) under the said Schedule are relevant. For ready reference, the same are, therefore, extracted herein below :
"3. Any money which is declared by any law for the time being in force to be recoverable or realisable as an arrear of revenue or land revenue, or by the process authorised for the recovery of arrears of revenue or of the public revenue or of Government revenue.
4. Any money which is declared by any enactment for the time being in force -
(i) to be a demand or a public demand ; or
(ii) to be recoverable as arrears of a demand or public demand, or as a demand or public demand ; or
(iii) to be recoverable under the Bengal Land Revenue Sales Act, 1868 (VII of 1868)".
15. Thus one has to proceed on the basis that any money advanced as loan by any bank which satisfies the requirement laid down in the above two paragraphs would be recoverable as "Public Demand" under the Act of 1913. It is noticeable that in both the paragraphs referred to above, the money to be recovered as public demand has to be declared by any law/enactment to be realisable as arrear of revenue or land revenue or by the process authorised for the recovery of the revenue or of public revenue or of Government revenue or as an arrear of demand or public demand.
16. Section 3 of the 1976 Act, therefore, provides that any amount due to a Bank or financial institution or any person in respect of any amount advanced or granted under any scheme shall apart from any other mode of recovery be recoverable as arrear of land revenue under the Act of 1913. As a corollary, therefore, any amount in arrear to a bank or a financial institution can be realised as public demand provided the same had been advanced or granted under a scheme within the meaning of Section 3 of the said Act.
17. "Scheme" defined in Section 2(h) of the Act of 1976 is as follows :
'"Scheme' means a scheme framed and/ or approved for the purposes of this Act by the State Government for providing opportunities for employment or for assisting agricultural or industrial activities or purposes."
18. In terms of the above definition a scheme would mean one framed or approved for the purpose of the said Act by the State Government for providing opportunities of employment or for assisting agricultural or industrial activities and purposes. A conjoint reading of the above provisions of the two enactments would thus make it demonstrably clear that any amount due to a Bank or a financial institution can be realized as public demand in terms of the procedure prescribed in the Act of 1913 provided that the said amount had been advanced or granted under any scheme framed and/or approved for the purposes of the Act of 1976 by the State Government providing opportunities for employment or for assisting agricultural or industrial activities and purposes.
19. The stand of the petitioner has through out been that the alleged loan had not been advanced under any scheme within the meaning of the Act of 1976 and, therefore, in any view of the matter, the amount said to be in arrear cannot be realised as public demand under the Act of 1913. The respondent Bank has sought to meet that contention of the petitioner by asserting that the loan was sanctioned to the petitioner's mill which is a small scale industrial unit registered with the Government for its industrial activities and purposes. Further by the notification dated 9.6.1992 every scheme of a bank for assisting, inter alia, industrial activities and purposes as defined in Section 2(c) of the Act of 1976 had been approved by the Government. The question, therefore, is whether the loan said to have been advanced to the petitioner was under any scheme of the Bank for assisting the industrial activities and purposes of the petitioner's mill. If the answer is in affirmative, the respondent Bank may draw sustenance from the notification 9.6.1992 otherwise, the said notification would be wholly irrelevant. In course of the hearing the learned counsel for the respondent Bank had produced a list of schemes of the Bank which, inter alia, includes the scheme for advancing term loans and working capital to small scale industries. On the other hand, the petitioner has produced a document dated 18.3.1989 issued by the respondent Bank, sanctioning a loan of Rs. 1,00,000.00 in favour of the petitioner's mill as its working capital. The said document, however, does not indicate any where as to whether the said loan was advanced under any scheme of the Bank. The relevant records pertaining to the financial accommodation extended to the petitioner have also not been placed before this Court. The list of the schemes produced in course of the hearing does not suggest that those were available at thy time when the loan was advanced to the petitioner's mill. The state of the materials available on records, therefore, do not permit to conclude that the loan advanced, to the petitioner's mill in the year, 1989 was under any scheme prevalent then for assisting industrial activities of a small scale industrial unit. If a scheme as, contemplated) by the Act of 1976 was not in force at the time when the loan was advanced, introduction of any such scheme at a later point of time even if approved by the State Government in my view Will not bring the loan within the purview of the scheme so as to attract the provisions of Section 3 of the said, Act, in case, any amount falls in arrear subsequently. In other words, if a loan is advanced under the scheme of a bank but not approved at that point of time by the Government, any amount in arrear may be recovered as a public demand if the scheme is approved by the Government later on, but if the loan had not been advanced under any scheme of the Bank approval of a scheme introduced later on by the Government would not render any amount in arrear (of the loan amount) recoverable as a public demand. Section 3 of the Act of 1976 prescribes an additional mode of recovery of any amount due to the Bank or any financial institution in respect of any amount advanced or granted by it under a scheme, as defined in Section 2(h) thereof. It is a special legislation providing a summary, expeditious and effective remedy against defaulters of loan advanced by a Bank or a financial institution under a scheme made or approved by the Government. To avail such a remedy, the conditions prescribed by the enactment must therefore be present. The basic requirement is that the claim must bear the attributes of a public demand. The mandatory procedural requirements must also be complied with. In other words, the prescribed pre-requisites for the applicability of the two Acts should demonstrably exist to avail the relief thereunder, In my considered opinion, if a proceeding under the Act of 1913 on the basis of a requisition made by such Bank or financial institution is challenged as not maintainable, it would be the burden of the Bank or the financial institution to establish that the conditions precedent prescribed by the two enactments exist so as to sustain the claim as public demand. In the case in hand, no affidavit has been filed on behalf of the State respondents. Except a bald statement in the affidavit of the respondent that the loan was advanced to the petitioner's mill under its scheme for assisting industrial activity, no other material has been brought on record to substantiate the said stand. The letter sanctioning the loan as dealt with above, however, does not indicate that the financial accommodation was made under any such scheme, I cannot, therefore, persuade myself to hold that the loan advanced to the petitioner's mill in the year, 1989, was under any scheme of the respondent Bank as defined in Section 2(e) of the Act of 1976. It follows, therefore, that the amount clue to the respondent Bank out of the said loan advanced to the petitioner's mill cannot be recovered as a public demand. I am, therefore, inclined to uphold the contention of the learned counsel for the petitioner in this regard.
20. A brief reference to the decisions cited by the learned counsel for the parties is essential. In Md. Anowar Ullah (supra) a proceeding under the Act of 1913 initiated against the petitioner had been challenged, inter alia, on the ground that the amount sought to be recovered from him was not realisable as public demand. In the facts of that case, the Court noticed that the amount did not satisfy the requirement of paragraph- 9 of Schedule I of the Act of 1913 to make it recoverable as public demand and it concluded that the Certificate Officer, therefore, had, no jurisdiction to proceed with the certificate proceeding. It was further observed by this Court that as a plea of want of jurisdiction of Certificate Officer had been raised, the said petition under Article 226 of the Constitution was maintainable.
21. A question similar to the one raised in the instant proceeding came up for consideration before this Court in Gopal Chandra Deori (supra). There a notice was issued under the Act of 1913 following a Bakijai Proceeding which was challenged referring to Section 2(e) of the Act of 1976. Referring to the expression "public demand" as in Section 3(6) of the Act of 1913 read with Schedule I thereto, this Court in the facts of that case held that there was nothing on record to show that the amount was taken as loan from the Bank under any scheme framed/approved by the Government for the purposes contemplated under the Act of 1976 and, therefore, the provisions of the Act, of 1913 could not be invoked to recover the amount in arrear. The impugned notice and the Bakijai Proceeding, as a result, were quashed.
22. In Jyotirmoy Bhattacharjee (supra), one of tin-questions which engaged the attention of the Court was whether for recovery of the amount in arrear to a Bank, a requisition for signing a certificate by the Certificate Officer is a condition precedent for valid initiation of a certificate proceeding. In that case no requisition was submitted on behalf of the Bank and to the contrary, the demand certificate was signed by the agent thereof. The certificate too was not in the prescribed form but the Bakijai Officer proceeded to execute the certificate by issuing a distress warrant in the absence of any certificate signed by the Certificate Officer. This Court held in the above backdrop of facts that the procedure prescribed by the Act of 1913 had not been followed and that there was no proceeding before the Certificate Officer.
23. In Sukumar Debnath (supra), it was contended before this Court that the order of the Certificate Officer rejecting the petition filed under Section 9 of the Act of 1913 raising objection to the issue of the certificate under Section 6 thereof without considering the same on merits was not sustainable in law. Upholding the said condition, this Court held that it was incumbent under Sections 6 and 9 of the Act for the Certificate Officer to be satisfied; that the claim was not barred under the law which demanded application of mind to the material on records. Concluding that the Certificate Officer in the facts of that case had failed to act in terms of the requirement of law, this Court remitted the matter to the Certificate Officer for fresh disposal of the petition filed by the petitioner resisting the issue of the certificate on merits.
24. I am in respectful agreement with the views expressed by the Court in the aforesaid decisions. The statement of law as recorded therein reinforces the view that I have taken as above.
25. The learned counsel for the respondent Bank has placed reliance on. Director of Settlements, AP and others (supra) as well as Haryana Financial Corporation (supra) to underline the legal principle that the statements of a Court on matters other than law like facts may have no binding force as facts of two cases may not be similar and it is the principle found out upon reading a judgment as a whole in the light of the questions before the Court that forms the ratio and not any particular word or sentence. The observations made in the judgment, therefore, must be read in the context in which they appear. The judgments of courts are not to be construed as statutes and the Court should not place reliance on the decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed.
The proposition of law as laid down by the Apex Court in the above decisions is well settled. In my view, the objection raised by the petitioner with regard to the maintainability of the certificate proceeding on the ground that the claim of the respondent Bank is not recoverable as public demand can be well sustained independent of the decisions cited by the learned counsel for the petitioner. The cited decisions of the Apex Court, therefore, do not advance the case of the respondent Bank in the facts of the present case.
26. In United Bank of India v. Naresh Kumar and Ors. (supra) the Apex Court had, inter alia, observed that in a proceeding involving a public corporation, substantive rights should not be allowed to be defeated on technical grounds of procedural irregularity so as to ensure that no injustice is done to any party. In that case, the appellant Bank had instituted a suit for the recovery of the loan amount advance to the respondent. An objection was raised by the respondent contending that the plaint was not signed and verified by a competent person. In the facts of that case, the Apex Court noticed that the appellant Bank had been able to establish that the respondent No. 1 had taken the loan and that the principal debtor and guarantor had agreed to pay interest thereon. It was in that context that the above observations were made. No challenge to the maintainability of the suit being barred by any provision of law was made.
This decision has been relied upon by die learned counsel for the respondent mainly to meet the contentions raised on behalf of the petitioner with regard to the procedural irregularities afflicting the certificate proceeding. Having held that the claim of the respondent Bank is not recoverable as public demand, I do not consider it necessary to deal with those contentions. As the basic issue has been decided against the respondent Bank, the objection with regard to the procedural irregularities need not be attended to. The claim of the respondent Bank being not one realisable as a public demand, the certificate proceeding and the impugned order passed therein suffers from want of legal sanction and jurisdiction. The facts of the present case being distinct and different from those in the case of United Bank of India v. Naresh Kumar and Ors. (supra) the said decision is of no assistance to the respondent Bank.
27. The inevitable conclusion following the above narration, therefore, is that the initiation of the certificate proceeding and continuance thereof is not sanctioned by the provisions of the two Acts referred to above and thus cannot be sustained in law and on facts. The petition, therefore, succeeds. The certificate proceeding No CC-4 559/96-97 pending before the Certificate Officer, Nagaon, and the impugned order dated 10.11.1998 passed therein are hereby yet aside and quashed. In the facts and circumstances of the case there would be no order as to costs.