ORDER
Tapen Sen, J.
1. Heard the parties.
2. The Writ Petitioner in the instant case has prayed for quashing of the order dated 24.4.2002, which has been passed by the respondent No. 4 (Deputy Manager, Bihar State Credit & Investment Corporation Ltd.), whereby and whereunder the respondents, in compliance of the earlier order passed by this Court in W.P. (C) No. 1997 of 2002, inter alia intimated that the petitioner was liable to make payment of a total amount of Rs. 32.76 lakhs. The petitioners have also prayed for quashing of the earlier letter dated 4.9.1992 as contained in Annexure 3, whereby and whereunder the Petitioners were informed that the rates of interest in relation to transactions made after 1.5.1992 was being revised under the IDBI Re-finance Scheme. The petitioners have further prayed for quashing the letter dated 31.3.1993 issued by the respondents and as contained at Annexure 5 Series, by which the petitioners were informed about the resolution of the Board of Directors of Bihar State Credit and Investment Corporation Ltd. (hereinafter referred to for the sake of brevity as ‘BICICO’) that the rate of interest as revised by IDBI/SIDBI was approved and it will come Into force with effect from the date as mentioned in the circular Nos. FI-10/93-94 and 14/93-94 and 21/93-94. They were further informed that the aforementioned resolution was applicable in the case of the Petitioner and that the rate of interest would be calculated accordingly.
3. The petitioners have also challenged the circular dated 9.8.1994 (Annexure 6) by which it was informed that it had been decided to revise the rates of interest once again.
4. The petitioners have stated that the decision of the respondents to make applicable the circulars stated above on the basis whereof decision was taken to revise the rates of interest was not correct as these circulars could not be said to be applicable in the case of the petitioner.
5. The petitioners have also prayed for a direction upon the respondents to make a fresh calculation as per the interest agreed upon by agreement and not to charge penal interest as according to them, the same is not legally payable by the petitioner. The petitioners have also demanded that they should be given the entire calculation sheet so that they may be in a position to verify the same. In addition to the aforesaid, the petitioners have also demanded that the respondents be directed to raise a fresh demand after waiving the entire penal interest as well as 60% of the interest as per direction of this Court made earlier vide Annexure 20. These petitioners have further prayed that a writ of mandamus be issued directing the respondents to hand over a copy of the loan Agreement to them as according to them, the same has been lost and in spite of specific requests, the respondents have not handed over the same to them. They have also made a prayer that the respondents should be directed to credit the cheques/drafts in the account of the petitioner in the same manner as the respondents debit loans disbursed by way of cheques/drafts on the dates mentioned on the cheques /drafts and not on the dates on which receipts are allegedly being issued at the sweet will of the respondents. Finally, the petitioners have also made a prayer that no further interest should be allowed to be charged by the respondents on the outstanding dues, because according to them, the respondents have not complied with the earlier orders of this Court, notwithstanding the fact that the petitioners are ready to make payment of the amounts legally payable by them by way of a one time settlement.
This Court would not have interfered with this case for the second time alter the agreed order was passed on 18.4.2002, but, since the learned counsel for the petitioners states that the abovementioned order stipulated that the petitioners would pay the amount legally payable in one lump sum and the respondents, by passing the impugned order have calculated the amount which is not legally payable by them, this Court, therefore, gave one more opportunity to make their submissions.
6. During the course of arguments, Mr. Y.V. Giri, Sr. Advocate, learned counsel for the petitioners however confined his argument and submitted that in view of the earlier agreed order passed by this Court on 18.4.2002 in W.P. (C) No. 1997 of 2002, his clients are ready and willing to pay the dues which are legally payable by the petitioners and according to him the words “legally payable” appearing in the aforementioned order dated 18.4.2002 should be interpreted as being calculated on the basis of 14% interest and not 19% Interest. He has further stated that the petitioners are not chronic defaulters and out of a loan of Rs. 70,50,378/- which was actually received against the sanctioned loan of Rs. 76,00,000/-, the petitioners have, till date, paid back a sum of Rs. 1,33,00,000/- approximately. His only grievance is that even by reason of impugned order, the respondents have calculated interest at the rate of 19%, when in fact, as per agreement it should be on the basis of 14%.
7. Mr. Y.V. Giri has drawn the attention of this Court to some essential facts and which are necessary to be taken note of. Some time in the year 1988-89, the petitioner applied for a term loan before the ‘BICICO’ consequent whereupon a sum of Rs. 76,00,000/- was sanctioned vide Annexure 1 and one of the conditions for such sanction was that the term loan was subject to re-finance by IDBI. Under the terms and conditions, it was indicated that BICICO would charge interest at the rate of 14% per annum with half yearly rests etc. and that the above mentioned rates of interests may be revised from time to time at their discretion and that the borrower shall be liable to pay interest at such rates which may be revised from time to time.
8. Pursuant to the aforementioned sanction, the petitioner has stated that an agreement was entered upon between BICICO and the petitioner in the year 1990-91 and pursuant thereto, the petitioners received a total sum of Rs. 70,59,378/-during the periods 31.3.1990 to 15.10.1990. In other words, what the petitioners states is that against the aforesaid sanctioned loan of Rs. 76,00,000/-, they received a sum of Rs. 70,59,378/- between the period 31.3.1990 to 15.10.1990.
9. It would be relevant to mention that the loan in this case was sanctioned on 27.1.1990 as is apparent from Annexure 1 appended to the writ application.
10. According to the petitioners, the agreement with BICICO in the year 1990-91 stipulated 13.5% interest upto Rs. 25,00,000/-and 14% above Rs. 25,00,000/-. It also stipulated penal interest at the rate of 2%. The petitioners have stated that they have lost the copy of the loan Agreement and therefore, they are not in a position to produce the same before this Court. According to them the State Government has given subsidy to the petitioner amount to Rs. 12,00,000/- and BICICO has received a sum of Rs. 133,14 lakhs and in spite of subsidy being released by the State Government, BICICO did not give any adjustments on account of subsidy and went on charging interest on the loan amount which compelled the petitioner to move this Court vide C.W.J.C. No. 666 of 1992(R). In the meantime and during the pendency of that writ application, BICICO issued a letter of dated 4.9.1992 by which the rate of interest in relation to transactions after 1.5.1992 was enhanced. According to the petitioners, the aforementioned letter itself made it clear that the rate of interest will come into force with effect from 1.5.1992 and will be applicable to all cases where the term loan and re-finance had been sanctioned prior to 1.5.1992 and not disbursed so far. According to the petitioners, their loans had all been disbursed between the period 31.3.1990 and 15.10.1990, and. therefore, this enhancement on 4.9.1992 by Annexure-3 could not be made applicable upon the petitioners.
11. In the meantime, the abovemen-tioned Writ Petition No. 666 of 1992(R) was disposed of on 7.9.1993 by which certain observations and directions were made inter alia directing that the revised rates of interest as contained at Annexure-3 herein and which was made Annexure 13 thereto, shall not be given effect unless opportunity was given to the petitioners to substantiate their case to the effect that loan agreement was entered upon prior to 1.5.1992 and that the rate of interest was chargeable as per the loan agreement and not on the basis of the revised rates.
12. The petitioner has stated that pursuant to the aforementioned order, BICICO was under an obligation to act within the four corners of the said order, but no such opportunity was given to them and by letter dated 8.9.1993 the matter was brought to their notice by the petitioners, where after on 31.12.1993, the petitioners received a letter from BICICO informing them that a decision had been taken by the Board of Directors resolving inter alia that rates of interest would be as per the IDBI/SIDBI circulars and that the said circulars were approved making them enforceable with effect from the dates mentioned in the said respective circulars. By reason of the aforementioned letter dated 31.12.1993 as contained at Annexure 5 Series It was further informed that the aforementioned resolution was, in fact, applicable to the petitioners.
13. The petitioners have stated that the aforementioned circulars were not applicable in as much as the entire disbursement was made between the period 31.3.1990 and 15.10.1990 and that the aforementioned circulars (enclosures to Annexure 5 Series) clearly stated that the same would be applicable with effect from the dates mentioned therein, but surprisingly the revised rates of interest was sought to be made applicable upon the petitioners.
14. Subsequently on 9.8.1994, the petitioners were again served with circular No. 1605 relating to revision of rates of interests and once against the petitioners have stated that this circular would not be made applicable in as much as there was a specific clause mentioned therein to the effect that revised interests were applicable in respect of loans which were sanctioned prior to 1.3.1994 but no part has been disbursed so far. According to the petitioners since the entire disbursement had been made upto 15.10.1990, the aforementioned circular could also not have been made applicable upon the petitioners.
15. The petitioner has further stated that right from the beginning and till November 2000, they had been regularly paying all installments and they never gave any occasion to BICICO to make any complaints but most of the payments were made under protest, requesting each time that detailed accounts be given to them but till date, the respondents have not given any accounts and have only forwarded demand notices to the petitioners.
16. According to the petitioners, due to reasons beyond their control after the year November 2000, the petitioners faced acute financial crunch which ultimately led to the closure of the company in November 2000 and therefore, the company is still lying closed. In the meantime on 15.11.2000, the State of Jharkhand was created and thereafter the State Government came out with an industrial policy, consequent whereupon the petitioner applied before the Director of Industries and after due consideration, the unit of the petitioner was declared sick and by Annexure-9, the fact relating to the declaration of the unit as being a sick unit was duly published in the News Papers on 9′.5.2002.
17. Subsequently on 24.10.2000 BICICO served a notice upon the petitioners asking them to make payment whereupon on 9.11.2000 the petitioners informed BICICO about their critical financial position and requested that they should be allowed reliefs in interest so that they may survive. According to the petitioners, they have been repeatedly requesting BICICO to reschedule the repayment and to waive “interest but they have not received any positive reply from their end. In the meantime on 31.5.2001 the petitioners were informed that they owned a sum of Rs. 30,92,293/- as on 31.3.2001 and in this demand the principal amount was shown as Rs. 23,75,000/-.
18. Inspite of repeated representations as contained at Annexure-11 Series, there was no positive response from the side of BICICO and on the other hand the Managing Director vide his notice dated 16.1.2002 asked the petitioners to pay and liquidate the entire dues of Rs. 37.62 lakhs to avoid penal action.
19. In reply to the aforementioned notice the petitioners filed a representation on 4.2.2002, but thereafter the petitioners came to learn that a notice dated 6.2.2002 had been issued under Sections 29 and 30 of the State Financial Corporations Act, 1951 notifying inter alia that the petitioner owed a sum of Rs. 37.62 lakhs. Thereafter, again representations were sent wherein the petitioners, amongst other things, pointed out that the dues could not have been shown as Rs. 37.62 lakhs. Inspite of all this, the petitioners have stated that the aforementioned notice which was published in Prabhat Khabar on 13.3.2002 inviting tenders and offers for sale included the petitioner Company at Sl. No. 30. Additionally, the petitioners, were also served with a notice dated 11.3.2002 asking them to clear off the entire dues within seven days, failing which it was threatened that certificate proceeding shall be initiated.
20. Under the aforementioned circumstances, the petitioner filed W.P. (C) No. 1997 of 2002 and the abovementioned Writ Petition was disposed off on 18.4.2002 by this Court on the basis of an agreement of the parties which infer alia reads as follows : During the course of arguments, all party, have agreed that this writ petition be disposed of on the following terms and conditions :–
(A) The petitioner or its authorised representative shall meet the Managing Director of the BICICO on or before 24th of April, 2002 and shall produce a copy of this order before him;
(B) The Managing Director, in his ‘ turn, shall immediately recalculate the entire remaining dues legally payable by the petitioner and upon such calculation, he shall hand over the same to the petitioner or its authorised representative by 26th April, 2002;
(C) On receipt of the aforementioned fresh calculation/demand and, within a period of (1) one month from the date of such receipt, the petitioner, without any further reference to any other forum or any other court, shall pay the same in one lump sum;
(D) The Managing Director of BICICO in his turn shall, while calculat-, ing the remaining balance in the manner indicated above, and as undertaken by the learned counsel for the BICICO, also waive penal interest and shall give all possible deductions/remission permissible as per policy.
As’ agreed by all the parties in the manner stated above, this writ petition stands disposed making the terms and conditions (A) to (D) above absolute.”
21. The petitioner’s case now is that after the aforementioned order was passed, they through their authorised representative and advocate, duly appeared before the Managing Director, BICICO and filed representation on 22.4.2002. However, as stated, there was virtual non-cooperation on the part of BICICO and they were surprised to receive a letter dated 24.4.2002, which was passed within two days and which is contained at Annexure-21, by which the petitioners were again informed that they were required to pay a sum of Rs. 32.76 lakhs.
22. According to Mr. Y.V. Giri, the calculations that have been made are not correct and he has argued that the rates of interest should be as per the agreement and not on the basis of the circulars, hi other words, what Mr. Y.V. Giri contends is that if the rate of interest is calculated at 14% as per the agreement, and not at the rate of 19%, then the amount would be substantially reduced and they would be in a position to pay.
23. Mr. Y.V. Giri has further stated that after passing of the agreed order on 18.4.2002, the petitioners could not have reagltated the matter but he submits that Clause (B) made it specific that the Managing Director should have recalculated the entire remaining dues which were “legally payable” by the petitioner. According to the petitioners the amounts which are legally payable by them are the amounts which should be calculated at the rate of 14% and the action of the respondents in making calculation at the rate of 19% is illegal and therefore, the petitioners are not liable to pay this amount, the same being not “legally payable”.
24. From a perusal of the impugned order which has been passed pursuant to the order dated 18.4.2002 in W.P. (C) No. 1997 of 2002 it is apparent that the respondents have simply repeated their earlier demand of Rs. 37.62 lakhs. The petitioners repeated assertion to the effect that they are liable to pay interest at the rate of 14%, appears not to have been taken into consideration.
25. The submission of the petitioners is that the respondents have illegally and unilaterally calculated the amount at the rate of 19% on the basis of the IDBI/SIDBI circulars. In this context, it would be worthwhile to refer to the relevant language of the circulars revising the rates of interest and which have been brought on record by the Writ petitioners. The first revision was indicated by Annexure-3 which states that the revised rates of interests of term loan would be 19%. Under the SIDBI circular at Clause (A) thereof it is mentioned that the above rates would come into force with effect from 1.5.1992 and would be applicable to loans where loan agreement had been executed on or after 1.5.1992 and in all cases where the term loan and refinance had been sanctioned prior to 1.5.1992 and not disbursed so far. So far as the IDBI circular is concerned, the same has also been mentioned at Clause (B) thereof indicating that the interest at the rate of 20% would be applicable to all cases where the term loan and refinance thereto had been sanctioned prior to 1.5.1992 and not disbursed so far. Similar language has been used in the other revision circulars including the one dated 14.1.1994 which also says that rate of interest would be charged at the revised rate and would come into effect on all loan agreements executed on or before 8.9.1993 but not disturbed so far. Similarly, similar is the position with regard to revision circular dated 9.8.1994 as contained at Annexure-6.
26. The admitted case of the parties is that the entire loan was disbursed between the period 31.3.1990 to 15.10.1990 and therefore, the aforementioned revision circular cannot be said to be applicable upon the petitioners. On the contrary, the interest which is applicable upon the petitioners is the interest that was fixed as per the term loan agreement and which clearly says that the rates of interest would be 14% per annum. Undoubtedly, there is a stipulation that the interest may be revised at the discretion of the lender. However, what is important is that the revision circulars are themselves so specific that the language of the said circulars themselves make it clear that those revision circulars apply on loan “not disbursed so far”.
27. In this case, a counter-affidavit has been, filed on behalf of respondents Nos. 1 to 6. While highlighting the constitution of BICICO and its aims and objectives and also the fact that it takes loans from different organisations, has been stated that the writ petition tacitly reveals that a huge amount of money life laying outstanding and which is payable to them and that no payment has been made in the last few years. They have further stated that upon an application made by the petitioner for grant of term loan the respondent Corporation sanctioned a term loan of Rs. 76 lakhs out of which an amount of Rs. 74.15 was disbursed to the Petitioner Company in keeping with the terms and conditions of the loan and as per the contribution made by the promoters of the petitioner Unit in a manner brought out below :–
Date Amount
31.03.1990 49,73,000.00
20.09.1990 12,00,000.00
15.10.1990 12,42,000.00
74.15 lakhs
28. They have also stated at paragraph 14 that the petitioners are chronic defaulters and that till the year 2001, they have paid a sum of Rs. 133.14 lakhs.
29. They have further stated that pursuant to the order of this Court passed in W.P. (C) No. 1997 of 2002 it has waived the entire penal interest of Rs. 4.65 lakhs and the 60% of the accrued interest as on 31.03.2002 amounting to Rs. 6.24 lakhs.
30. From the counter-affidavit, however, no explanation seems to be coming forth from the side of the respondents as to whether these Revision Circulars are applicable upon the petitioners or not? Although prima facie and from the language used therein it appears that perhaps these circulars may not be applicable upon the petitioners, but it would not be proper for this Court to give any adjudication in relation thereto in favour of the petitioners as this aspect lies exclusively within domain of the respondents to say so. In that view of the matter, the impugned order dated 24/25.04.2002 is set aside and the matter is remanded to the respondents to pass a speaking order in accordance with law. They must conclusively and finally state giving reasons as to whether these Revision Circulars are applicable or not applicable upon the petitioners. Once such an order is passed, the respondents shall then make fresh calculations on the basis of the said speaking order and after making such fresh calculations, they will serve the same upon the petitioners. Thereafter the petitioners must act as per the agreed order dated 18.4.2002 passed in W.P. (C) No’. 1997 of 2002.
31. With the above mentioned observations and directions, this writ petition is
disposed off.