AMIT AMBAR KACHHAP Vs. UNION OF INDIA

JUDGEMENT

(1.) IN this Writ Petition the Petitioners have prayed for a direction on the Bihar State Financial Corporation -Respondent No. 1 [hereinafter referred to as the B.S.F.C for short] and its officers to give them the benefits of the "B.S.F.C One Time Settlement Scheme, 2004" [hereinafter referred to as "the OTS Scheme, 2004"] for which the Petitioners had applied within the prescribed time with the necessary amounts.The Petitioners have also prayed for quashing the Resolution dated 16th November, 2005 (Annexure -3) restraining the Respondents from auctioning and settling the Petitioners - Unit with any other person. The Petitioners have further prayed for quashing the sale letter dated 16th November, 2005 and the resolution of the Board of Directors dated 25th August, 2006 and the Order of the Respondents dated 12th October, 2006 whereby the application of the Petitioners for giving them the benefits of the OTS Sctieme, 2004 has been rejected and the auction purchasers have been permitted to deposit the money.

(2.) THE Petitioners' case is that the Petitioner No. 1 is a partnership industrial unit engaged in manufacturing of Calcine and grinding material. At present the industrial unit is situated at Pandara, Ranchi over an area of 2.23 acres.The Petitioner No. 2 is the Managing Partner. The Unit was started in the year 1973. The partners also took loan from the Respondent -BSFC.The loan of Rs. 3,40,000 was sanctioned, but out of the same only Rs. 2,64,000 were released. The partners invested rest major amounts for the Unit from their own resources. Again in the year 1983, an additional loan of Rs. 2 lacs was sanctioned, but the entire amount was adjusted against the interest accrued on first loan/The Petitioners out of their resources constructed another Kiln and at present there are three Down 16/5/2014Draft PageKilns 112 against the said loan amount. The Petitioners have already paid about more than Rs. 12 lacs against the above loan amount. The B.S.F.C did not pay the additional loan amount within time and added some disputed amount towards the dues account of the Petitioner and started demanding the same from the Petitioners. The Petitioners had then filed writ petition in the Patna High Court, Ranchi Bench (as then was) being C.W.J.C No. 312/1993(R).The said Writ Petition was disposed of on 4th November, i993 in favour of the Petitioners directing the Respondents to consider the Petitioner's representation and dispose of the same by reasoned Order.The Respondents -B.S.F.C while deciding the Petitioners' representation again demanded the disputed amount. Since there was dispute in accounts, the Petitioners had to file Title Suit No. 106/95, which led to appeal being T.A. No. 4/2003. The cases were finally decided on 25th July, 2005. The Petitioners have further stated that the Respondents -B.S.F.C, in the meanwhile, came out with a scheme known as One Time Settlement Scheme, 2004 (OTS -2004). The main condition for availing the benefits of the,said Scheme was that there should not be any dispute of the account. As stated hereinabove, the dispute regarding the account was finally Amit Ambar Kachhap Versus Union Of India decided in T.A No. 4/03 on 25th July, 2004, there was thus, no longer any dispute regarding the account.The Petitioners became eligible for consideration of the OTS Scheme, 2004. The benefits under the said Scheme were extended upto 25th November, 2005. The Respondents in the meanwhile suddenly served a notice dated 16th November, 2005 (Annexure -3) informing the Petitioners that the Unit has been Ordered to be sold and if they wish to retain the Unit, they can do so by depositing Rs. 40 lacs -the balance outstanding as on 31st August, 2005, within 21 days from the date of issuance of sale Order, i.e., by 6th December, 2005. The Petitioners have spent huge amount out of their own resources, therefore, they want to retain the Unit on payment of the dues either under OTS Scheme or the loan dues. Total amount payable under the OTS Scheme, 2004 would be between 13 -14 lacs only. The Petitioners thus preferred to apply for settlement under OTS Scheme and they applied under the OTS Scheme -2004 alongwith the requisite amount on 25th November, 2005. The Petitioners also filed their representation requesting the M.D., B.S.F.C. not to proceed further in pursuance of the Anneuxre -3 dated 16th November, 2005.The BSFC thereafter directed the Petitioners to deposit application amount of Rs. 46,400 which was also deposited by the Petitioners. When no notice was taken of the Petitioners' application under OTS Scheme even thereafter for a long time in spite of several reminders, the Petitioners preferred this Writ Petition on 27th July, 2006. It is relevant to mentioned here that during the pendency of the Writ Petition, the Respondents rejected the Petitioners' application for settlement under the OTS Scheme, 2004 by Letter No. 447/Z -W dated 12th October, 2006 and the Respondents also advertised the Petitioners -Unit for sale in the daily newspaper'The Hindustan" published from Patna in its edition dated 15th January, 2003. The Petitioners by way of amendments also prayed for quashing the same.

(3.) A counter affidavit has been filed on behalf of the Respondents -Bihar State Financial Corporation stating, inter alia, that a term loan of Rs. 3.40 lacs was sanctioned in favour of the Petitioners on 29th June, 1973. Subsequently, an additional loan of Rs. 2 lacs was sanctioned on 25th March, 1984. The Petitioners - Unit failed to repay the dues of the Corporation as per the term of the agreement and as such legal notice under Secs. 29 and 30 of the State Financial Corporation Act, 1951 [hereinafter referred to as "the said Act"] was issued. Then the Unit was advertised for sale on 15th January, 2003 in daily "Hindustan" published from Patna. In the meantime, the Corporation announced One Time Settlement Scheme, 2004 for settlement of dues with regard to the Units which are under the non -performing assets categories or in the doubtful and loss categories as per the record of the Corporation. The Scheme was operative w.e.f 26th November, 2004. The Petitioners did not apply under the O.T.S Scheme, 2004 for settlement of dues. In the mean time, the Corporation received tender in response to the sale advertisement and the sale has been decided at a consideration amount of Rs. 150 lacs. This amount is against the principal outstanding of Rs. 4.64 lacs as on 31st August, 2005, the balance outstanding of Rs. 42.26 lacs as on 31st August, 2005 and valuation of assets assessed by the Corporation to the tune of Rs. 141.50 lacs as on 11th March, 2004. Before finalization of sale a copy of the sale Order dated 16th November, 2005 was issued to the Petitioners -Unit giving them option to retain the Unit by paying the total loan outstanding. As per the term of the sale Order, the promoter of the concern has to pay Rs. 40 lacs in 21 days from the date of issuance of the sale Order and balance of BOS against the concern, i.e., Rs. 2,26,195.92 in three months period. Since the sale Order has been issued on 16th November, 2005, the right of original promoters became dormant. The Petitioners had to deposit atleast Rs. 40 lacs within 21 days from the date of issuance of the sale Order, but the Petitioners -concern did not deposit the said amount and as such the Petitioners cannot claim any right under the One Time Settlement Scheme. The Petitioners' application for One Time Settlement scheme has been rejected by the Board of Directors of the Corporation as before the receipts of the application for One Time Settlement Scheme on 25th November, 2005, the sale Order was issued on 16th November, 2005. It has been stated that the Corporation had given ample opportunity to the Petitioners to repay the loan and retain the Unit and even after the decision of sale of the Unit, the Petitioners were given an opportunity to retain the Unit on matching terms of sale by paying the balance loan outstanding in instalment, but the Petitioners failed to do so and there is no question of consideration of O.T.S application of the Petitioners after issuance of the sale Order in favour of the purchaser. It has been stated that the purchaser is now ready to purchase the assets of the Unit after negotiation with the Corporation for a total consideration of Rs. 150 lacs, i.e., above the outstanding dues of Rs. 42.62 lacs against the Petitioners and as such the Corporation has decided to finalize the sale in favour of the purchaser Shri Nazir Hussain. In Paragraph 49 of the counter -affidavit, the Respondents have made statements that "as per the O.T.S Scheme, 2004 there is no specific bar in accepting the application of any concern even after the sale Order has been finalized, but it is the discretion of the Corporation to accept and/or reject the O.T.S application under the peculiar facts and circumstances and also in the interest of the Corporation".