JUDGMENT D.K. Seth, J.
1. The petitioner had challenged the recovery certificate issued against him on account of loan taken by him from the respondent Bank by means of Writ Petition No. 11539 of 1998 which was disposed of with certain directions for payment of amount in instalments by an order dated 21.4.1998. Special Appeal No. 399 of 1998 against the said order was filed by the petitioner. The appeal was dismissed by order dated 26.5.1998. It appears that in none of the orders the cost of the petition or of the appeal was awarded. By an order dated 22.6.1998, the Bank had sent requisition for recovery of a sum of Rs. 7.600 being the cost incurred by the bank for defending the said proceedings as arrears of land revenue along with recovery proceeding. This order is Annexure-4 to the writ petition and has since been challenged in this writ petition.
2. Mr. R. A. Verma holding brief for Shri Man Phool Singh, learned counsel for the petitioner contends that unless the Court award cost, it is not open to the authority to recover such cost and, therefore, the order of the Bank to recover such amount as arrears of land revenue is wholly unwarranted and cannot be sustained, therefore, the said order should be quashed.
3. Mr. A Sahai, learned counsel holding brief for R. B. Sahai, learned counsel for respondent bank, on the other hand, contends that in terms of the agreement between the petitioner and the bank, the bank is entitled to recover such amount for enforcement of security of the hypothecated property. In the said writ petition and the appeal, the bank had defended its case and. therefore, in terms of the said agreement, the bank is entitled to recover such amount that has been incurred by them in defending the case, He also contends that in the writ petition, the petitioner had prayed for cost of the writ petition itself as well as in the appeal he had prayed for cost of the appeal. But the same was not allowed. Therefore, the Bank is entitled to realise its own cost.
4. I have heard learned counsel for the parties at length.
5. The clause under which Mr. Sahai, learned counsel for respondent relies on reads as follows :
"(4) receivable and investment, movable assets and valuables (All or any of the items detailed in (1) to (4) above hereinafter referred to as "the security") SHALL BE AND STAND HYPOTHECATED to the Bank by way of first charge as security for the loans and also for all indebtedness or liabilities of the Borrower(s) to the Bank together with all interest, commissions, costs, charges and expenses payable to or incurred by the Bank including those for the enforcement of any of the security."
6. A plain reading of the said clause shows that the hypothecated property are the first charge as security for the loans together with all interest, commissions, costs, charges and expenses payable to or Incurred by the Bank including those for the enforcement of the security.
7. So far as the recovery proceeding is concerned at the moment, it is proceeding without enforcement of the security. This clause will come into operation when the security is sought to be enforced inasmuch as the hypothecated properties are being sold. Then again this will be the cost and would be assessed in the recovery proceeding itself. It is not open to the Bank to assess such cost unilaterally until the end of the proceeding in which either the security is being sought to be enforced or such recovery is sought to be made.
8. The writ petition which was filed by the petitioner is a petition filed by the person who had taken loan. The defending of the proceeding is not enforcing the security in terms of the clause on which Mr. Sahai, had relied upon. Then again, the question of cost of the proceeding is dependent on the orders that has been passed in the proceeding itself. In case, the Bank was so interested in cost, in thai event it would have insisted for awarding cost when the writ petition was disposed of or the appeal was dismissed. The cost of the petition and appeal is to be decided on the basis of the order passed by the appellate court itself. If it is dismissed without cost or no cost is awarded to either of the parties, in that event no one is entitled to recover cost of the proceeding of the writ petition or the appeal. It is only when cost is specifically awarded then only it can be recovered. If nothing has been mentioned in the order, in that event, it cannot be read as cost awarded. Refusal to grant cost to the petitioner does not mean that !t had allowed cost to the respondent. In order to allow the cost, it is to be so ordered in the order itself. In the absence of any such order, it is not open to recover the cost incurred towards defending its case in the writ petition and the appeal unllaterally by the bank itself, and to seek recovery of such amount from the petitioner as arrears of land revenue. Therefore, the order dated 22.6.1998, contained in Annexure-4 to the writ petition, cannot be sustained in law and as such, is hereby quashed. Let a writ of certiorari do issue accordingly.
9. This order, however, will not prevent the Bank for enforcing clause (4) and recover the amount so incurred in such proceeding and it will be open to authority proceeding for recovery proceeding to decide the issue if it arises before him in course of the proceeding in accordance with law within the scope and ambit of the said condition contained in the said agreement. It will be open to the bank to enforce the said clause of the agreement in any other mode if it is so advised and if it is open to the bank under the law.
10. With the aforesaid observation, this writ petition is disposed of.
However, there will be no order as to cost.