FILM DEVELOPMENT CORPORATION Vs. DEBENDRANATH MOHANTY

JUDGEMENT

(1.) This writ petition has been filed under Articles 226 and 227 of the Constitution of India by Film Development Corporation of Orissa Limited, a Government of Orissa undertaking against the Urban Co -operative Bank, Smt. Indurekha Mohanty and her husband Sri P. K. Mohanty and also against the Asst. Registrar of Co -operative Societies, Cuttack. During the pendency of the writ petition, P. K. Mohanty died and in his place, his legal heirs were substituted.

(2.) ON 30.4.1982, the petitioner -Corporation, opposite party -Bank and opposite party No. 3, Smt. Indurekha Mohanty, proprietor entered into a Tripartite Agreement whereupon the Bank -opposite party advanced a term loan of Rs. 4,58,990/ - and the petitioner -Corporation, a soft loan of Rs. 1,00,000/ - to opposite party No. 3. The loans were secured by mortgage of immovable properties, the Bank having first charge and the Corporation second charge in the said properties. Annexure -3 is the said agreement. The loan was secured for producing an Oriya film 'Mahasati Sabitri' by opposite party No. 3. According to Clause 17 of the Agreement, the amount deposited in terms of the agreement was to be apportioned between the Bank and the petitioner -Corporation in the ratio of 80:20 and thereafter adjusted against the loan. The film produced was to be hypothecated to the Bank and the Corporation. Opposite party No. 1 inducted the petitioner -Corporation to be a guarantor for opposite party No. 3 as a gesture of good -will and the said deed of guarantee is at Annexure -4. Though it is stated in the writ petition that liabilities of the guarantor arise only when the principal borrower fails to clear the dues and the properties secured are not sufficient to meet the claim, but from Clause (v) of the agreement, we find that liability was concurrent.

(3.) THE petitioner has assailed the order on various grounds, the main ground being dispute case is not maintainable and secondly, the impugned order is bad in law inasmuch as no opportunity was given.