JUDGMENT
V.K. Bali, J.
1. M/s Shree Yamuna Paper and Board Industries, a sole proprietory unit, through its proprietor Mr. Ashok Kumar has filed the present petition under Article 226 of the Constitution of India for issuance of writ in the nature of mandamus directing respondent No. 1 to place on record the proceedings whereby the tender in favour of respondent No. 2 has been finalised for the sale of the unit of the petitioner. It further seeks a writ in the nature of certiorari so as to quash the proceedings including the finalisation of the tenders in favour of respondent No. 2.
2. Briefly, stated the facts of the case are that Haryana Financial Corporation, respondent No. 1 sanctioned a loan of Rs. 14.50 lacs, to the petitioner’s concern on 24.9.1993 for setting up industrial unit of the petitioner. It is the case of the petitioner that electric connection was released by Haryana State Electricity Board on 13.10.1996 and the unit as such started manufacturing on 24.3.1997. On 15.10.1997 the respondent corporation advertised the unit in the newspaper without informing the petitioner about the same. On 29.12.1997 respondent corporation once again advertised sale of unit in Punjab Kesari and Economic Times and the case of the petitioner is that it was not informed. The petitioner, however, came to know on 24.1.1998 that negotiations were held on 19.1.1998 by which the unit of the petitioner worth Rs. 30 lacs stood offered to respondent No. 2 for a meagre sum of Rs. 5 lacs. When petitioner came to know about the same it immediately contacted respondent No. 1 i.e. Financial Corporation on telephone. The proprietor of the unit was asked to visit the office of respondent Corporation on 27.1.1998. Consequently, proprietor of the petitioner Unit visited the office of Financial Corporation and tried his best to convince the officers and even offered to make the payment of the defaulted amount but to his utter surprise nobody paid any heed to his request. When no action was taken despite various visits made by the proprietor of the unit to the Financial Corporation, the present writ petition was filed.
3. The grouse of the petitioner raked through its learned counsel Mr. Dadwal is that even though the sale in this case was effected by inviting tenders, petitioner’s unit was not informed with regard to sale having been made to highest tenderer. That being the procedure adopted by the Financial Corporation, petitioner was denied its right to purchase the property or make a buyer available to the Corporation on the price on which the unit was sought to be sold i.e. to the highest tenderer. Mr. Dadwal further states that in so far as offer of the petitioner was concerned that was never taken into consideration and so much so the petitioner’s unit is now prepared to pay the entire amount to the Financial Corporation. He further states that the sale is on a wholly inadequate price, in as such as, the unit with its land and machinery is not less than Rs. 30.00 lacs, and has been sold for only 5 lakhs. For the first contention learned counsel has relied upon judgment of the Supreme Court in J. T. 1992(2) 326. Before we may deal with the contentions of the learned counsel for petitioner, as noted above, it will be pertinent to mention here that at the time of issuing notice of motion on 5.2.1998 we had stayed the confirmation of sale and handing over of petitioner’s unit subject to the petitioner depositing an amount of Rs. 10.00 lacs within one month from the said date. Concededly amount referred to above was not deposited and has not been deposited till date. Vide speaking order dated 8.5.1998 we had vacated the stay. When the matter came up before this Court on 10.7.1998, after hearing arguments at a considerable length, the Court had desired to see the records to find out as to when, for the first time, the Corporation had offered the petitioner that if it was prepared to pay Rs. 5 lacs the sale shall not be affected. It was the case of the petitioner that the offer made by the Corporation was through letter received by it on 24.1.1998 whereas the Unit has since been sold to highest tenderer on 19.1.1998. In as much as the Corporation had not given a straight answer to the averments made by the petitioner aforesaid the Court had asked the respondent Corporation to file an affidavit by its responsible officer. Pursuant to directions issued by this court on 10.7.1998, Sh. Ashok Pahwa Asstt. General Manager, Haryana Financial Corporation has filed affidavit. In paragraph 3 of the affidavit, it has been mentioned that notice dated 31.12.1997 was sent to the petitioner through registered post on 2.1.1998 and when the petitioner failed to bring better buyer, sale of the unit was confirmed in favour of respondent No. 2. It requires to be further mentioned that vide interim order passed in this case while vacating the stay, we had ordered that the unit should be given possession of to the highest tenderer.
4. The corporation has filed written statement contesting the claim of the petitioner. After referring to order passed by this Court on 5.2.1998 it has been mentioned in the written statement filed on behalf of the respondent Corporation that the petitioner has not deposited Rs. 10 lacs. till date. It has further been stated that the petitioner has not come to this Court with clean hands. The petitioned was sanctioned a loan of Rs. 13.29 lacs by the Corporation on 20.9.1993 and amount of Rs. 14.45 lacs was also sanctioned towards the working capital loan. The land of the petitioner alongwith machinery was mortgaged to the Corporation. The first instalment of the principal amount and the interest thereon amounting to Rs. 2,03,748/- fell due on 1.3.1995 in terms of mortgage deed dated 20.1.1994. The demand notice for the payment of this amount was issued on 10.2.1995. The petitioner deposited Rs. 1 lac in March, 1995 and requested for rescheduling of the balance amount in default which was accepted by the Corporation vide its letter dated 31.3.1995. The petitioner deposited a cheque for the amount of Rs. 51,000/- in terms of reschedulement agreement but the said cheque was received back dishonoured for which a registered notice was issued to the petitioner vide letter dated 27.6.95, but the petitioner failed to clear the balance amount in default. Thereafter the next instalment amounting to Rs. 1,92,929/- fell due on 1.9.95 thereby the default rose to Rs. 2,97,136. Subsequently the petitioner requested for rescheduling partly by way of adjustment out of release of instalment of loan and the balance to be remitted in monthly instalment. The request of the petitioner was accepted and conveyed vide letter dated 6.10.1995. Petitioner was to deposit Rs. 62,924/- in November, 1995 and in terms of reschedulement, but the cheque for the said amount was received back dishonoured from the bank. Petitioner again requested for reschedulement of the amount in default and again its request was accepted vide letter dated 6.3.1996. This reschedulement was again revised on the request of the petitioner and the post dated cheques were deposited by the petitioner, the first of said cheque for Rs. 78,000/- was received back dishonoured from the bank. Petitioner failed to honour all the reschedulements and it again requested the answering respondent which was accepted by the answering respondent vide its letter dated 15.11.1996 but the petitioner failed to honour the latest reschedulement of the amount and failed to clear the amount in default. Inspite of the fact that several opportunities were given to the petitioner and all the requests made by the petitioner for rescheduling the loan were accepted, the petitioner every time committed the default. When the petitioner did not clear the dues inspite of the repeated requests and reminders, the respondent corporation was left with no option but to recall entire loan vide letter dated 28.2.1997. The petitioner was again given one month time to clear the entire outstanding amount in its account. At the time of recalling the entire loan, the over due amount in the petitioner’s account had gone upto Rs. 7.73 lacs. The petitioner again asked for rescheduling of the due amount and even after recalling of the entire amount, petitioner’s request for rescheduling of his loan amount was accepted by the Corporation vide letter dated 5.5.1997 and thereafter the petitioner was advised vide letter dated 20.5.1997 to deposit the entire amount but it failed. In the circumstances the Corporation was left with no other alternative but to take possession of the factory and sell it under Section 29 of the State Financial Corporation Act, 1951 because it was no longer possible for the respondent-Corporation to wait indefinitely for the amount due to the petitioner and consequently notice under Section 29 was issued vide letter dated 14.7.1997 and the possession of the unit was voluntarily handed over by the sole proprietor as per report dated 8.8.1997. At the time of delivery of possession, one electric meter of 50 H.P. was found missing for which first the sole proprietor was given notice dated 13.8,1997 to restore the missing electric meter at the factory side but at the later stage a complaint with SHO Sadhaura was lodged. The Corporation took the steps to dispose of unit for the recovery of its amount and inspite of its best efforts, the respondent corporation received the highest offer of Rs. 5 lacs for the said unit. In order to fetch maximum price for the unit the respondent corporation gave another public notice in the Economic Times on 29.12.1997 and Punjab Kesri on 29.12.1997 calling upon the concerned borrowers/guarantors to locate a better buyer and any other person interested in the purchase of the unit to send their offer alongwith the earnest money. Since the petitioner was liable for the repayment of the corporation’s dues and other charges, so the petitioner was also give a notice giving it final opportunity to locate a better buyer, if any, who may be prepared to offer the price exceeding the offer received by the respondent corporation as indicated above, but the petitioner did not come forward with a better buyer. The petitioner also did not deposit the amount of Rs. 10 lacs as ordered by this Court.
5. Respondent No. 2, the one who has purchased the unit by giving highest tender has also contested the claim of the petitioner by filing written statement. There is no need to mention the contents of the said written statement as the same are on the same lines as has been given in the written statement filed by the Corporation.
6. We have given our thoughtful considerations to the points raised and canvassed by Mr. Dadwal. In the facts and circumstances of the case we find that there is no merit in either of the points raised by Mr. Dadwal. The contents of the written statement as have been noted above demonstrate beyond shadow of reasonable doubt that number of opportunities were given to the petitioner to repay the loan. In as many as 5 times on the requests made by the petitioner rescheduling of the loan was done but it appears that the petitioner being chronic defaulter did not stick even to his own terms regarding rescheduling and every time post dated cheques were issued but the same were dishonoured.
7. In so far as first point is concerned it is quite clearly made out from the additional affidavit filed on behalf of the corporation and it may be restated that this court had directed the respondent Corporation to file an affidavit to the effect as to when for the first time the corporation had asked the petitioner that if it was prepared to pay Rs. 5 Lacs the sale shall not be effected. It has been mentioned in the affidavit aforesaid that the said notice was issued to the petitioner on 2.1.1998. It is the case of the petitioner that the notice was received by the brother of the sole proprietor of the unit on 24.1.1998 and the said notice was handed over to him when he came back from Delhi. He further states that request was made to postal authorities to give him a certificate of delivery of the notice, but the same has not been made available to him. This Court is of the considered view that the petitioner has coined a story which is nothing but a figment of imagination with a view to prop up a totally false case. If the case of the petitioner was as has been contended by Mr. Dadwal that the brother of the proprietor of the petitioner unit had handed over notice to the sole proprietor on 24.1.1998, surely such pleadings must have been made in the petition. Not, only that proper pleadings are not there, there is no averment in the petition that application was ever made to the postal authorities to issue certificate to the petitioner with regard to receipt of notice by the brother of the petitioner. Further, even affidavit of the brother of the sole proprietor has not been placed on the record of the case. A presumption can be drawn from the provisions of the Post and Telegraphs Act and Evidence Act that when a letter and particularly a registered letter is sent on correct address, the same has been received by the addressee. Nothing at all has been shown to make it but that the address of the petitioner was wrongly mentioned. In fact, as mentioned above, the case of the petitioner is that the letter was received, however, it is further the case of the petitioner that it was received on 24th of January. The presumption that arises from the provisions of Evidence Act can be rebutted but the petitioner has not brought on records an iota of evidence to rebut the said presumption. In these circumstances, the Court has absolutely no choice but for to reject the contention of the learned Counsel.
8. The second contention raised by Mr. Dadwal based upon judgment of Supreme Court in /. T. 1992(2) 326 that the property can be sold only by way of open auction and in case it was to be sold by way of inviting tenders, petitioner ought to have been given a chance to purchase it on the price offered by the highest tendered, we find no substance in this contention of the learned counsel as well, as it has been clearly recorded in J.T. 1992(2) 326 that if a sale is made by inviting tenders, only procedure the Corporation is to observe is, that the offer of highest price is to be made to the petitioner. As mentioned above this exercise was done by the Corporation.
9. In so far as the contention of the learned counsel for paying the entire amount that the petitioner might have to pay to the Corporation at this stage is concerned, the same is highly belated. That apart, by now interests of third party has also intervened. The conduct of the petitioner right from the day when loan was paid clearly reflects that the present offer is only a made up affair. It has been made only with a view to get away of the order auctioning the unit of the petitioner. This offer is not bona fide. It may be recalled that respondent-Corporation rescheduled the loan; number of times. Every time, the petitioner issued a cheque pursuant to re-scheduling of the loan, the same was dishonoured. Despite that before selling the unit petitioner was asked to clear his account. The petitioner singularly failed to adhere; to any promise made by him. The petitioner did not even adhere to his promise of making the payment of Rupees ten lacs as offered by him when stay was granted. As mentioned above, the said amount has not been paid till date. From the facts as have been fully detailed above, this Court is of the firm view that the petitioner has no intention whatsoever to repay the loan and is trying to catch on straws with a view to get away from the order of sale of its unit to respondent No. 2. His offer is not at all genuine.
10. Finding no merit in this petition, we dismiss the same.