- (1.) THE present writ petition has been filed for issuing a writ of certiorari quashing the proceeding for sale of the factory M/s Export Metals, Aligarh as mentioned in the advertisement published in Hindi "dainik Jagaran" dated 29-9-2006. Further prayer is for issuing a writ of mandamus directing the respondents not to take any step for the sale of the factory of the petitioner.
(2.) THE facts arising out of the writ petition are that the petitioner was granted loan by the respondents in the year 1984. THE petitioner has stated in the writ petition that the earlier writ petition filed by the petitioner (No. 41164 of 2000) was listed for hearing on 4-9-2006 and as the Counsel for the petitioner i. e. Sri V. K. Barman had no information, as such the matter was decided finally by this Court dismissing the writ petition on the ground that as the petitioner is availing the alternative remedy by way of filing a suit, therefore, the writ petition is hereby dismissed. It has further been stated that Suit No. 212 of 1988 pending before the Civil Judge was dismissed for default on 30-3-1992. THE application for restoration is pending. In the mean time the Financial Corporation took the possession of the factory. THE restoration application was allowed in the year 1995 on payment of Rs. 50,000/- as costs. At the time of taking possession of the factory, an inventory of machines had been prepared and after restoration of the suit, the possession was handed over to the petitioner but the machineries were not handed over to the petitioner. THE machineries were assessed to the tune worth Rs. 9 lacs. It has further been mentioned that Suit No. 246 of 2003, Mukesh Kumar & Ors. v. U. P. Financial Corporation, has also been dismissed for default on 14-1-2004. Suit No. 246 of 2003 was in respect of some land only and not relating to factory about M/s Export Metals. It has also been stated that in the absence of the Counsel who had filed the writ petition and due to the incomplete instructions on the date, the writ petition was dismissed. Now the respondents have made an advertisement in the newspaper"dainik Jagaran" on 29- 9-2006 for sale of the factory of the petitioner. As such the petitioner has approached this Court. It has been submitted by Sri V. K. Barman, Senior Advocate that as he has filed the writ petition, therefore, without permission, another Counsel cannot be engaged and cannot argue the matter and there was no permission by the Counsel who had argued the matter. Under such circumstances the petitioner submits that as he has already deposited Rs. 1 lac, he may be permitted to make an application to the respondents for one time settlement and till the settlement is arrived, the factory of the petitioner may not be sold in auction. On the other hand, Sri Atiq Ahamad Khan who appears for respondent U. P. Financial Corporation has submitted that the present case has a long history and admittedly the petitioner had taken a loan of Rs. 10 lacs from the U. P. Financial Corporation, which was sanctioned in favour of the petitioner on 7-5- 1984. A sum of Rs. 9,71,6000/- was paid to the petitioner in the year 1984. The petitioner defaulted in repayment of the aforesaid loan. In spite of the repeated requests and reminders, no payment was made. Then the Corporation decided to proceed under Section 29 of the State Financial Corporation Act. A notice to that effect was given in the month of January 1988 to the petitioner. The petitioner filed suit on 18-3-1988 as Suit No. 212 of 1988 in the 'court of Civil Judge, Aligarh for the following reliefs: " (A) That by means of a permanent injunction the defendants No. 1 and its employees including, defendants No. 2, 3 and 4 be restrained from taking over physical possession over the factory building of the plaintiff situated in Mukundpur, Pargana and Tehsil Koil, Aligarh from taking over any action for the transfer of the assets of the Unit mortgaged with the defendant No. 1 in any manner, whatsoever with a direction that the recovery of the money be made from the future earning of the fixed assets. (B) Any the relief to which the plaintiff may be found entitled may also be given. (C) Cost of the suit be also awarded to the plaintiff from the defendants:"
(3.) AN injunction application was filed and the same was granted in favour of the petitioner The written statement was filed taking a plea that the suit is barred under the provisions of the State Financial Corporation Act, U. P. Public Money Recovery of Dues Act and U. P. Zamindari Abolition and Land Reforms Act. The petitioner permitted the suit to be dismissed in default on 15-1- 1992. After the dismissal of the suit, the Corporation on 31-1-1992 took the possession of the unit. AN application for restoration was filed and the said application was allowed on 27- 5-1994 and in compliance with the order passed by the trial Court; the unit was handed over to the petitioner on 1-6-1994. Then the petitioner filed an application, which was numbered as Application No. 90 Ga. The trial Court allowed the said application on 13-1-1995 and following directions were given to the respondent Corporation: (i) The defendant should return the entire goods to the plaintiff within 20 days, which they have taken at the time of taking possession. (ii) In case of not returning the goods the defendant should pay Rs. 9 lacs within 20 days being the value of the goods returned short to the plaintiff. (iii) In case the defendant may not pay the aforesaid amount to the plaintiff the defendant are directed to adjust the aforesaid amount of Rs. 9 lacs in the loan account of the plaintiff. (iv) The defendant should also sanction a new loan of the aforesaid amount of Rs. 9 lacs to the plaintiff so that they may run their factory. Aggrieved by the aforesaid order and directions the Corporation filed Civil Revision No. 381 of 1995. The revision was allowed and the order passed by the trial Court dated 31-5-1995 was set aside vide its judgment and order dated 24-9-97 and the Court below was directed to decide first Issue No. 6. A Special Leave Petition No. 1844 of 1998 was filed against the order-dated 24-9- 1997. The said special leave to appeal was dismissed by the Apex Court by order-dated 9-2-1998. On the basis of the order of this Court dated 24-9-1997 the trial Court had passed an order in Suit No. 212 of 1998 that the suit is barred by Section 3 (3) of the U. P. Public Money Recovery of Dues Act and Issue No. 6 was decided in favour of the Corporation. A review application was filed and the same was also dismissed. After the aforesaid proceedings the Corporation published an advertisement for sale of the unit on 7-9-2000 in the newspaper and the Corporation has also received an offer of Rs. 14,58,000/- for the purchase of the unit of the petitioner. In compliance with the judgment passed in Mahesh Chandra's Case a notice was sent to the petitioner on 6-9-2000 calling upon the petitioner to purchase the unit for the said amount mentioned above or to arrange for a buyer who can purchase the said unit for a higher price. The petitioner instead of complying the aforesaid notice has filed Writ Petition No. 41164 of 2000 and has obtained an interim order restraining the Corporation from selling the unit. The respondents have brought to the notice of the Court the amount Rs. 1,64,77,865. 78 which was due against the petitioner on 20-6-2004. The petitioner has paid only Rs. 95,825/ -. The said amount has been adjusted in the interest amount from time to time. As the petitioner has obtained an interim order in his favour, and the counter-affidavit and rejoinder affidavit were exchanged and the aforesaid writ petition was listed before this Court on several occasions, but it was adjourned several times on the request of the Counsel for the petitioner. The case was dismissed for default on 2-2-2006. Then on an application made by the petitioner, the same was restored on 2-3-2006. On 9-3-2006 the case was passed over on the request made by the petitioner's Counsel. When the case was listed on 28-8-2006 Sri Bhupeshwar Dayal Advocate has filed his Vakalatnama on behalf of the petitioner and has requested that the matter be listed in the next cause list and the interim order was also directed to remain operative till the next date of listing. The case was taken up in the revised list on 4-9-2006 and Sri Bhupeshwar Dayal, learned Counsel for the petitioner who has already filed his Vakalatnama was heard for the petitioner and Sri Atiq Ahamad was heard for the respondent-Corporation. The writ petition was dismissed on the ground that the petitioner has already filed a suit in the year 1988 and obtained an injunction order in his favour. After dismissal of the suit as not maintainable when the notice under Section 29 of the U. P. Financial Corporation Act was issued, the Writ Petition No. 41164 of 2000 was filed and the petitioner has obtained the interim order.;