IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.9994 of 2011
M/S Kiran Re-Roller's Pvt. Ltd, a Company incorporated under the
provisions of Companies Act, 1956 having its Registered Office
situated at & P.O. & District Nalanda-803111 through its Managing
Director, Awadhesh Prasad Sinha, son of late Raghunandan Prasad,
Resident of village & P.O. Bari Chhariari, P.S.Tharthari, District
Nalanda.
... Petitioner
Versus
1. The State Of Bihar through the Industrial Development
Commissioner, Government of Bihar, New Secretariat, Patna
2. The Director of Industries, Department of Industries, Government
of Bihar, New Secretariat, Patna
3. The General Manager, District Industries Centre, Nalanda
4. The Bihar State Credit & Investment Corporation Limited, Indira
Bhawan, 4th Floor, Ram Charitra Singh Path, Patna -800001.
5. The Managing Director, The Bihar State Credit & Investment
Corporation Limited, Indira Bhawan, 4th Floor, Ram Charitra Singh
Path, Patna -800001.
... Respondents
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For the petitioner : Mr. S. D. Sanjay, Advocate
For the BICICO : Mr. Nirmal Kumar, Advocate
Fore the State : Mr. Anjani Kumar Jha, A.C. to S.C.13
———-
15/ 30.06.3011 Heard learned counsel for the petitioner, learned
counsel for the State of Bihar and its authorities as well as learned
counsel for the Bihar State Credit & Investment Corporation
Limited (hereinafter referred to as `the BICICO’ for the sake of
brevity ) and its authorities.
2. By this writ petition, the petitioner seeks the
following reliefs :-
(I) For quashing of the Sale Notice issued by the
Respondent-Bihar State Credit & Investment
Corporation Ltd. (BICICO) published in Daily
Newspaper- Hindustan on 10.06.2011 wherein it
has included the sale of the assets of the petitioner
Company fixing the date of sale on 30.06.2011 as
2being wholly illegal, without jurisdiction;
(II) For quashing of the order vide letter no. 255 dated
03.06.2011 by which the Respondent-BICICO has
ordered for taking over possession of the assets of
the petitioner and seal the same as being wholly
illegal and arbitrary.
(III) For a direction to the Respondent-BICICO to
accept the One Time Settlement Proposal submitted
by the petitioner which has been illegally kept
pending by the BICICO being wholly arbitrary and
illegal.
IV. For a direction to the Respondent-BICICO to permit
the petitioner to sell the Mortgaged Assets
including the land on which the Factory has been
established to enable the petitioner to make the
payment of the entire One Time Settlement Amount
as it is the Respondent-BICICO and other
instrumentalities of the State of Bihar which have
been responsible for making the petitioner Unit
sick; and
(V) For issuance of appropriate direction to accept the
payment in reasonable installments within a period
of 3 years to enable the petitioner to liquidate the
entire One Time Settlement amount of the
Respondent-BICICO; and for any other relief(s) for
which the petitioner may legally be found entitled
to in the facts and circumstances of the present case.
3. Learned counsel for the petitioner submits that it is a
Private Limited Company incorporated under the Companies Act,
1956, having its Small Industrial Unit at Nalanda for manufacture of
M.S. Rod, Angles, Channel etc. and for the said purpose it applied
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for grant of incentives under the Industrial Policy including the
capital subsidy and generator subsidy.
4. It is also claimed by learned counsel for the petitioner
that it applied for grant of subsidy but inspite of running from pillar
to post, the same was not granted to it. Even the working capital
was not granted to the petitioner and hence after some time, the
petitioner-Unit became sick and applied for rehabilitation before the
Apex Committee constituted by the State Government under the
Industrial Policy, 1995 for revival of sick Unit. In its meeting dated
13.01.1997 (Annexure 3), the said Apex Committee considered the
case of the petitioner and observed that on analysis of financial
information, the petitioner-Unit satisfied two conditions and as such
the petitioner was declared as a sick Unit in terms of the Reserve
Bank of India’s Guidelines and formal order of declaration of sick
Unit entitled for rehabilitation was passed by the Department of
Industries vide letter dated 28.02.1997 (Annexure 3A).
5. Learned counsel for the petitioner submits that in the
said circumstances, it filed C.W.J.C. No. 2876 of 2003, which was
disposed of by a Bench of this Court vide order dated 07.12.2007
(Annexure 8) observing that the petitioner was one of those
unfortunates, who decided to set up an industry in this State and
when it came to working capital, the Commercial Banks refused to
make available the working capital finance, from where the plight
and dichotomy of industrialization in this State began. It was also
observed that the Unit was not only faced with the question of
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survival but also how to meet its liabilities. It was finally observed
that it was not for this Court to go into the commercial or economic
aspect of the situation and only what this Court could do was to
direct the petitioner to once again approach the State through the
Director of Industry in the hope that in the changed scenario where
the State was repeatedly promising development through
industrialization as its course, might consider the matter and an
industry, which died without growing up might be revived or else
told to wind up but should not be kept alive on false promises and
hope incurring further liabilities.
6. It is stated that in the meantime the petitioner filed
C.W.J.C. No. 8547 of 2004 before this Court for directing the
BICICO to disburse the amount of subsidy. The said writ petition
was disposed of by order dated 13.10.2006 (Annexure 12) with a
direction that the credit would be given to the account of the
petitioner as on 05.10.1998 and it would be treated as if this was an
amount deposited in the term loan or other account by the petitioner
for repayment and/or discharge of its debts with the effect that the
liability of the petitioner would stand reduced by the said amount.
7. In view of the aforesaid order of this Court dated
07.12.2007 passed in C.W.J.C. NO. 2876 of 2003, the petitioner
filed an application dated 29.01.2008 (Annexure 9) before the Chief
Secretary for rehabilitation of petitioner-Unit. The said application
of the petitioner was considered sympathetically by the authorities
and finally on 13.08.2008 the Director of Industries sent a letter to
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the petitioner requesting it to send a clear proposal of rehabilitation
to the Director, Department of Small Scale Industries and only
thereafter the Unit would be inspected.
8. Learned counsel for the petitioner argues that inspite
of the aforesaid steps and inspite of several O.T.S. Schemes, for
which the petitioner applied before the authorities concerned, no
heed was paid to the petitioner’s repeated requests and finally the
impugned order dated 03.06.2011 (Annexure 17) was issued by the
Managing Director of the BICICO taking over the assets of the Unit.
Thereafter, the sale notice was also issued in the newspaper dated
10.06.2011 fixing the date of auction as 30.06.2011.
9. Learned counsel for the petitioner further states that it
had been throughout ready and willing to comply the directions of
the authorities concerned, which has been specifically found by the
authorities of the State as well as other Benches of this Court in
various decisions, but the authorities of the BICICO did not heed to
anything and were bent upon destroying the petitioner-Unit. He
further submits that the petitioner is still ready and willing to pay the
entire O.T.S. dues, which was accepted by the BICICO vide order
dated 30.12.2004 (Annexure 14 series) within a given time and to
show its bona fide it is ready to pay Rs. 10 lacs within two weeks as
it wants to revive the Unit, which is against the wishes of the
BICICO.
10. On the other hand, learned counsel for the BICICO
stated that it had accepted the One Time Settlement Proposal of the
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petitioner sent to it in the year 2004 and an information about it was
sent to the petitioner on 30.12.2004, but the petitioner neither
responded nor complied the direction of the authorities and the last
one time settlement scheme expired on 31.03.2011. Learned counsel
for the BICICO further submits that the conduct of the petitioner has
through out been unfair as after accepting the loan it has done
nothing nor it paid any amount except the subsidy, which was
adjusted. Even the reminders sent by the Corporation remained
unheeded and unreplied.
11. Learned counsel for the BICICO also argues that it
had throughout acted in accordance with law and had never violated
any provision of the State Financial Corporation Act, 1951
(hereinafter referred to as `the Act’ for the sake of brevity) and was
constrained to send notice dated 17.05.2011 (Annexure 16) under the
provisions of sections 29 and 30 of the Act giving the total of the
amount due for discharging the liability in full. He also avers that
when the petitioner failed to respond to the said notice, order dated
03.06.2011 (Annexure 17) was passed by the BICICO taking over
the assets of the Unit and finally sale notice was issued on
10.06.2010 (Annexure 18) with respect thereto, which are all in
accordance with law.
12. Learned counsel for the State supports the arguments
advanced on behalf of the BICICO and adopts the same.
13. Considering the entire facts and circumstances of the
case as well as the respective arguments of the parties and the
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materials on record, it is quite apparent that the authorities of the
State as well as this Court considered the case of the petitioner very
sympathetically and finally on the direction of this Court vide order
dated 07.12.2007 (Annexure 8), the petitioner approached the
authorities, which again considered the claim of the petitioner
sympathetically and, thereafter, vide order dated 13.08.2008
(Annexure 10) they directed the petitioner to give its clear
rehabilitation proposal so that proper steps could be taken in that
regard after inspection etc. No mention has been made nor any
document has been annexed to show that the said direction of the
authorities concerned was complied by the petitioner.
14. Furthermore the petitioner applied in the year 2004
for One Time Settlement as per the scheme of the respondents and
the BICICO considered the said application and vide order dated
30.12.2004 calculated the total amount payable under O.T.S. and
directed the petitioner to send the supporting paper and affidavit as
required under the O.T.S. Policy, 2004 along with Demand
Draft/Cheques for further action. There is neither any statement nor
any document to show that any step in that regard was taken by the
petitioner in compliance of the said directions.
15. Apart from the aforesaid facts, it is quite apparent
from the entire circumstances and documents that the authorities of
the BICICO have taken all steps and adopted all procedures as
required in law and have not violated any provisions of the Act.
Hence this Court does not find any reason to interfere with the
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impugned orders/notices under the provision of Article 226 of the
Constitution of India .
16. This writ petition is, accordingly, dismissed.
MPS/ ( S. N. Hussain, J. )