CIVIL WRIT JURISDICTION CASE No.10221 OF 1999 SHYAM NARAIN SINHA, son of Late Ram Barai Lal, resident of Mohalla Katirabag, Ara, P.S. Ara Nawadah District - Bhojpur ------------(Petitioner) Versus 1. Managing Director, Bihar State Financial Corporation, Frazer Road Patna. 2. Branch Manager, Bihar State Fionancial Corporation, Branch Ara, Mohalla Pakri, P.O. Ara District - Bhojpur 3. Sanjay Chopra Maharana Pratap Nagar, P.O. Nawadah, Arrah, Bhojpur. --------(Respondents) ------------------
For The Petitioner : Mr. Kai Das Chatterjee, Adv.
Mr. Amlesh Kr. Verma, Adv.
For The Respondent : Mr. Girijesh Kumar, Advocate.
THE HON’BLE MR. JUSTICE AJAY KUMAR TRIPATHI
A. K. Tripathi, J. Heard learned counsel for the petitioner and learned
counsel for the State.
Petitioner is the father of the original promoter. One
Kamlesh Kumar Sinha set up an industry on disbursement of
certain amount of loan in the name of M/s Kamlesh Engineering
Works located at Club Road, Arrah. The sanction of loan in
favour of the original promoter was made some time in the year
1986 and the term loan was of about 3.05 lakhs. Some
repayment till 26.12.1989 was made by him but thereafter in the
year 1990 he became traceless. In absence of repayment the
respondents Bihar State Financial Corporation (hereinafter
referred to as the ‘corporation’) initiated a proceeding under
section 29 of the Act. Out of concern or may be family pride
father of the original promoter (the present writ petitioner)
decided to take responsibility upon himself not only to settle the
dues of the corporation but may be even run the Unit. He
decided to communicate with the respondent’s corporation and
wrote many a letters in the year 1997. The matter was
considered and certain terms and conditions were laid down for
the petitioner to fulfill for a reconsideration of withdrawing the
proceeding under section 29 of the Act.
The earliest offer made by the corporation to the
petitioner is dated 22.03.1999, and has been brought on record
as Annexure – 4, not all the terms and conditions need be
noted in the present order but some of them are that the
petitioner was given a months time to repay 5.52 lakhs in one
lump sum. Since corporation had found a purchaser who had
deposited Rs. 60,000/- (sixty thousand only) the same had to
be also paid back and 18% interest has to be borne by the
petitioner if the refund of Rs. 60,000/- (sixty thousand only) to
the purchaser had to be made. There are several other
conditions with regard to the rate of interest which on a reading
does give a feel to the court that it was loaded against the
petitioner. The court also gets a feeling that the corporation did
not have patience and indulgence for the petitioner.
Annexure – 2 is the offer made to the purchaser by the
corporation. The purchaser was supposed to one Sanjay Kumar
Chopra for whom the consideration money fixed for the Unit
was 2.95 lakhs only. Out of this consideration money he was to
pay 25% by way of a Bank Draft within 21 days of the date of
issue of the order for confirmation of sale in his favour and
balance amount to Rs. 2.95 lakhs was converted into loan
repayable in a period of five years in twenty equal quarterly
installments and the first installment becoming due on 31 st
January, 1997. The installment worked out for him was Rs.
11067.58 Paise. The interest component was 20% per annum,
rest of the other conditions are not required to be dealt with in
When the petitioner learnt about the terms and
conditions which had been offered to the purchaser the private
respondents no. 3, he approached the corporation for
reconsideration. He demanded a kind of parity or fairness in the
decision making process, more so, since the respondents are
not only statutory body but a public body and certain amount of
responsibility is thrust upon them in decision making, specially
in public domain. Respondents however adopted the attitude of
take it or leave it. The petitioner did not succeed in getting any
concession to the offer made to him. He even contends that
probably it was purposefully done to shut him out of the scene,
so that private respondents Sanjay Kumar Chopra could have
posses the unit at his own leisure and time without making any
major financial outlay.
Vide order dated 23.09.1999, the sale of the Unit was
confirmed in favour of private respondents the petitioner is
aggrieved by this communication and decision and therefore,
the writ application came to be filed. At the time of admission,
the court decided to protect the interest of the petitioner by
directing that till further orders the Unit in question would not be
sold and the assets and liabilities of the Unit was protected. In
other words, by virtue of the order dated 14.10.1999, a kind of
status quo came to be maintained and Annexure – 1 to that
extent was not given effect to.
Notice had been issued to the private respondent but
he has chosen not to appear or assist the court. The counsel for
the respondent’s corporation also informs the court that he has
not been in touch with the office of the corporation on the matter
for a long long time which could be an indication of the fact that
he might have lost interest in the matter, since the writ
application is almost 10 years old when it was initially filed.
Counsel for the corporation is present and has
submitted in favour of the decision for auction sale of the Unit.
His submission is that the corporation has acted bonafidely and
only to protect its commercial or financial interest. The offer
made to the private respondent was in terms of his commitment
to the purchase and to assure that a buyer does emerge which
will facilitate recovery of some amount of money which was
loaned out to the original promoter.
No doubt the object for such decision is laudable but
the test of the pudding is in eating because there is nothing to
show from records that the respondent corporation at any point
of time really wanted to consider the offer of the petitioner with
equal magnanimity if not equality. If the corporation would have
been a little less tight fisted may be, they could have struck a
bargain with the petitioner whose sole interest in saving the Unit
was his emotion and feeling for a son who had gone missing
and had not been heard in all these years.
A dispassionate reading of Annexure – 4 with
Annexure -2 of the writ highlights the issue and reaffirms the
feeling of discrimination which the petitioner is making a
grievance. Learned counsel for the petitioner has no quarrel
with the power which the corporation has under section 29, but
he only wants a fair treatment in matter of decision making
process. Even today he is willing to meet the obligation of the
original promoter provided the finance corporation uses the
same yardstick and may be on similar laid down consideration
as purchaser in matters of repayment of the outstanding dues
against the Unit.
The present petitioner is the father of the original
promoter, he has no responsibility or liability to the Corporation.
Merely because he happens to be the father of the original
promoter, it does not mean that the respondents corporation
has to be harsh in its decision making process.
The court does come to a considered opinion that the
matter requires reconsideration at the level of the corporation
with an observation that the terms and conditions which had
been offered to the purchaser, who is anyway not interested in
pursuing the matter would be kept in mind so that the petitioner
wish to wash away the stigma or the liability which had been
created by his son may be fulfilled.
The writ application is allowed. Annexure – 1 is
quashed with a direction that an early decision be taken to
resolve the dispute.
Patna High Court The 25th Day of November, 2008 (Ajay Kumar Tripathi, J.) NAFR/AFR, Rajeev/