Ananda Ram Borah vs The State Of Assam And 5 Ors on 25 July, 2025

Gauhati High Court

Ananda Ram Borah vs The State Of Assam And 5 Ors on 25 July, 2025

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GAHC010160542025




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                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                         Case No. : WP(C)/4120/2025

         ANANDA RAM BORAH
         SON OF LATE RABI RAM BORAH, RESIDENT OF ABHAYAPUR COLLEGE
         NAGAR COLLEGE ROAD, NORTH GUWAHATI, KAMRUP, ASSAM ,SOLE
         PROPRIETOR M/S SHIV SHANKAR DIESEL AND SEVICE BORAH BHAWAN,
         4TH FLOOR, T. R. PHUKAN ROAD, BHARALUMUKH, GUWAHATI-781009



         VERSUS

         THE STATE OF ASSAM AND 5 ORS
         REPRESENTED BY THE SECRETARY TO THE GOVT OF ASSAM
         ,COOPERATION DEPARTMENT, DISPUR-781006

         2:THE REGISTRAR OF CO OPERATIVE SOCIETIES
         ASSAM OFFICE OF RCS
          KHANAPARA
         GUWAHATI-781022.

         3:THE BAKIJAL OFFICER OF COOPERATIVE SOCIETIES AND CERTIFICATE
         OFFICER
          OFFICE OF THE BAKIJAI OFFICER OF COOPERATIVE SOCIETIES
          GUWAHATI
          BHANGAGARH.

         4:THE GAUHATI COOPERATIVE URBAN BANK LTD
          REPRESENTED BY ITS CHAIRMAN
          BAJINATH BHAWAN
          CHATRIBARI ROAD
          GUWAHATI-781031

         5:THE BRANCH MANAGER
          GAUHATI COOPERATIVE URBAN BANK
          GUWAHATI BRANCH
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             BAJINATH BHAWAN
             CHARTIBARI ROAD
             GUWAHATI-781031

             6:THE RECOVERY OFFICER
              GAUHATI COOPERATIVE URBAN BANK
              GUWAHATI BRANCH
              BAJINATH BHAWAN
              CHATRIBARI ROAD
              GUWAHATI-78103

Advocate for the Petitioner   : M DAS, MS. M BORGOHAIN,MR. P MAHANTA

Advocate for the Respondent : SC, CO OP,




                                  BEFORE
                 HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY

                                           ORDER

25.07.2025

1. Heard Mr. P. Mahanta, learned counsel for the petitioner and Mr. S. K. Talukdar
learned Standing Counsel, Cooperation Department for the respondent nos. 1, 2
& 3.

2. The petitioner has projected that he is the proprietor of M/s Shiv Shankar
Sales and Service and in the course of his business, he availed financial facility in
the form of M.T.(business) loan from the respondent no. 4 i.e. M/s Guwahati
Cooperative Urban Bank Limited. It has emerged that according to the
respondent no. 4 bank, the outstanding liability against the financial facility
availed by the petitioner rose to ₹ 11,45,151/-. In order to recover the said
outstanding liability, the respondent no. 4 Bank has resorted to the remedy
available under the Bengal Public Demands Recovery Act, 1913 (‘the BPDR Act’,
for short). Terming the said outstanding liability of ₹ 11,45,151/- as ‘public
demand’ as defined under the BPDR Act, a certificate dated 20.02.2025
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purportedly under Section 6 of the BPDR Act and a notice dated 20.02.2025
purportedly under Section 7 of the BPDR Act have been issued by the Bakijai
Officer of Cooperative Societies, Guwahati & Certificate Officer, Guwahati.

3. Issue notice, returnable on 29.08.2025.

4. As Mr. Talukdar has appeared and accepted notices on behalf of the
respondent nos. 1, 2 & 3, no formal notices need to be issued in respect of the
said respondents. The learned counsel for the petitioner shall serve an extra copy
of the writ petition along with annexures, to Mr. Talukdar within 3 (three) working
days.

5. Petitioner to take steps for issuance of notice upon the respondent Nos. 4, 5
and 6 by way of registered post with A/D as well as by usual process within a
period of five days from today.

6. It is the projected case of the petitioner that the petitioner had availed
financial facility in the form of M.T.(business) loan from the respondent no. 4
Bank and the same does not come within the purview of ‘public demand’, as
defined under Section 3(6) read with Schedule I of the BPDR Act. The petitioner
has further asserted that though the respondent no. 4 Bank is a cooperative
bank, as defined under 2(jj) of the Assam Cooperative Societies Act, 2007, the
same is to be termed as a ‘banking company’ in view of the provisions contained
in Section 5(b) and Section 5(c) r/w Section 56(a)(i) of the Banking Regulation
Act, 1913. If the respondent no. 4 is to be construed as a ‘banking company’
then, any outstanding liability from a borrower is to be governed by the
provisions contained in Section 17 of the Recovery of Debts and Bankruptcy Act,
1993 in view of overriding effect given to the Recovery of Debts and Bankruptcy
Act, 1993 by Section 34 of the said Act.

7. Mr. Talukdar, learned Standing Counsel for the Cooperation Department on the
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other hand submits that though this cooperative society is involved in banking
activities, it cannot be defined as a bank company inasmuch as the loan are
advanced only to the share holders of the Cooperative Societies and therefore, it
is at the option of the bank either to proceed under the RDB Act, or under
SARFAESI Act, or can opt to proceed against a defaulter by way of bakijai
proceeding inasmuch as the provision of Section 114 of the Act, 2007 itself
prescribes default in loan to be treated as an arrear of public revenue.

8. This matter needs further consideration.

9. Having regard to the projections made and taking a prima facie view of the
matter, it is provided that till the returnable date, no coercive action in terms of
the Certificate dated 20.02.2025 (Annexure-C) and the notices dated 20.02.2025
(Annexure-C) and 16.06.2025 (Annexure-E) shall be taken against the petitioner.

10. List this matter along with WP(C)/1331/2023 on 29.08.2025.

JUDGE

Comparing Assistant