Jammu & Kashmir

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Section 47 of the BSF Act- the case squarely falls within 1st exception to the general provisions of Section 47 of the BSF Act, for which option is available to the applicant either to try them at BSF Court or let the Criminal Court of Ordinary jurisdiction to go ahead with their trial. In the instant case applicant has chosen to try them at BSF Court. Therefore, this court has no option but to hand-over the accused together with the charge-sheet and other material collected by Investigating agency to the applicant for trying them at the BSF Court, Application is therefore accepted and accused are ordered to be handed over under custody so the applicant together with charge-sheet and the supporting material as well as all the seized articles. The Officer concerned shall try the accused expeditiously and convey the final out-come of the case to this court as soon as it is completed” In the facts and circumstances of the case, we give liberty to the Director General of the Force, if so advised, to re-visit the entire issue within eight weeks bearing in mind the observation aforesaid in accordance with law and if he comes to the conclusion that the trial deserves to be conducted by the Security Force Court, nothing will prevent him to make an appropriate application afresh before the Chief Judicial Magistrate. Needless to state that in case the Director General of the Force takes recourse to the aforesaid liberty and files application for the trial by the Security Force Court, the Chief Judicial Magistrate shall consider the same in accordance with law. It is made clear that observations made in these appeals are for the purpose of their disposal and shall have no bearing on trial. In the result, both the appeals are allowed, the impugned judgment and order of the Chief Judicial Magistrate dated 25th of November, 2010 and that of the High Court dated 21st October, 2011 are set aside. The Security Force Court shall forthwith transmit the record sent to it, to the Chief Judicial Magistrate, Srinagar, who in turn shall proceed in the matter in accordance with law bearing in mind the observation aforesaid.


Bank/Banking – Loan waiver scheme – Indebtedness and inability of Respondent-borrowers in the State of Jammu and Kashmir to repay loan amount due to continuous militant activities in the State – Amounts borrowed less than Rs. 10,000/- – Debt Relief Scheme floated by Government for borrowers in the State – Scheme provided for waiver of bank loans upto Rs.50,000/- – Liberal interpretation of the scheme by Courts below and consequent dismissal of suits filed by Appellant-banks against Respondent-borrowers – Justification of – Held: Justified, considering the peculiar facts and circumstances of the case and in light of the various clauses in the Scheme itself and also in view of the fact that sub-clause (a) of Section 3 of the scheme provided for reimbursement of waived loan to the concerned banks. Respondents belong to the State of Jammu & Kashmir. They obtained loans upto Rs.10,000/- from Appellant-Banks for rearing of sheep and buffaloes and for establishing dairy units. The loans remained unpaid on which, the Appellant-banks filed suits against the Respondents. During pendency of the said suits, the Government framed a Debt Relief Scheme for borrowers in the State of Jammu & Kashmir to give them relief considering the continued militancy and other difficulties in the State during the relevant time. The scheme provided for waiver of bank loans taken by borrowers in the State upto Rs.50,000/- for purpose of their business activities. Taking suo motu notice of the said Scheme, the Courts below held that the loans obtained by Respondents could be presumed to be for trade purpose and after applying the said scheme, dismissed the suits filed by Respondents. The questions which arose for consideration in the present appeals were as to i) whether the loan obtained by Respondents for purchasing sheep and buffalos and for establishing dairy units was covered by the said Scheme and ii) whether, in absence of a specific plea by the Respondents, the High Court was justified in granting relief in terms of the said Scheme. =Dismissing the appeal, the Court HELD:1.1. The Debt Relief Scheme in question applies to borrowers in the State of Jammu & Kashmir who borrowed loan amount for the purpose of their business activities. Business activities have not been specifically defined in the scheme. Sub-clause (i) of clause 2(d) of the Scheme refers certain examples viz., tourism, transport, small scale industry, trade sector, hotel, house-boat business, retail trade, etc.. Though purchase of buffalos and sheep relates to agriculture and allied activities, it cannot be denied that from the buffalos, the borrower can establish a dairy unit and earn from the said business. In view of clause 2(d)(i), the word “etc.” in the definition of “eligible loans” connotes that besides the activities cited as example for business activity there are other business activities which could be included under the Scheme. The said liberal interpretation cannot be ruled out particularly, when the Debt Relief Scheme was introduced mainly as a relief to the borrowers in the militant dominated State during the relevant time. Following the very reason for introduction of the said Scheme i.e. to offer financial help to the poor and indebted borrowers of militancy hit Jammu & Kashmir, the Courts below rightly concluded that the agricultural and allied business activities viz., the types of trade/business which are substantially or partially depending on agriculture and/or agricultural produce as a business activity under the said Scheme. Further, the Reserve Bank of India Guidelines cannot be strictly followed as it has not been mentioned to be followed in the Scheme and, therefore, the term `business activity’ cannot be interpreted under the strict rule of interpretation. [Paras 9, 10, 13] [1045,C-D; 1045,E-G; 1047,D-E] 1.2. Besides, sub-clause (a) of Section 3 of the Scheme makes it clear that the amount waived off will be reimbursed to the concerned Bank/Financial Institution by the Department of Jammu & Kashmir Affairs, Government of India on recommendation of the Committee to be set up at the State Level. Even after the orders passed by the sub-Court and thereafter by the District Court, the Banks could have availed the benefit of reimbursement as provided under clause 3(a) of the Scheme. However, the appellant-Banks instead of availing the same, agitated the matter up to the level of this Court by spending more money for recovery of petty amounts from the small borrowers. The appellant-Banks are free to approach the Department of Jammu & Kashmir Affairs, Government of India who brought the Debt Relief Scheme, under clause 3(a) for reimbursement, if the same is permissible, at this juncture for which no opinion is expressed by this Court. [Para 14] [1047,H; 1048,A-C] 2. As regards the contention that in absence of a specific plea in the form of written statement or counter affidavit, the Court should not have given relief applying the said scheme, it is true that all the respondents were served by publication in the daily newspapers and in most of the cases, the amount borrowed was less than Rs.10,000/-, which may be one of the reason, the respondents failed to contest the suit. In those circumstances when the Government of India itself with the assistance of the State of Jammu & Kashmir brought a Scheme called “Debt Relief Scheme” and the same was available on the date when all the suits were pending, considering the special circumstances, the course adopted by the Courts below cannot be faulted with. [Para 11] [1046,A-D] 3. Considering all the peculiar aspects of the present case, particularly, indebtedness and inability to repay the loan amount by the borrowers due to continuous militant activities in the State of Jammu & Kashmir particularly, at the relevant time, the amounts borrowed which were less than Rs. 10,000/- in most of the cases, liberal interpretation of the Courts below in the light of the various clauses in the Scheme itself and also of the fact that sub-clause (a) of Section 3 of the scheme provides reimbursement of waived loan amounts, this Court is not inclined to interfere with the orders of the Courts below. [Para 15] [1048,D-E] Raju Ramachandran, G.M. Kawoosa and N. Ganpathy for the Appellant. S. Mehdi Imam and Anis Suhrawardy for the Respondents.=, 2008(12 )SCR1035, , 2008(12 )SCALE117 , 2008(9 )JT473

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 4817-4851 OF 2002 Jammu Rural Bank …. Appellant(s) Versus Mohd. Din & Ors. …. Respondent(s) WITH CIVIL APPEAL NOS. 4852-4854 OF 2002 AND CIVIL APPEAL NO. OF 2008 (Arising out of S.L.P. (C) No. 4901 of 2006) JUDGMENT P. Sathasivam, J. 1) Civil … Continue reading

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