- (1.) The present writ petition has been filed under Articles 226 /227 of the Constitution of India for quashing the notice dated 18.8.2011 (Annexure P-6) issued by the respondent-Corporation. Further prayer has been made for issuance of writ in the nature of Mandamus directing the respondents to credit the amount of Rs. 71.25 lacs as per the assessment made by the Valuer in the account of the borrower company as on 14.1.1999 i.e. the date when the respondents had taken over the possession of the plant, machinery and building and to release the mortgaged property of the petitioner and for discharge of the petitioner from the liability of the guarantee for the loan amount of the company. The pleaded case of the petitioner is that M/s. Lather Textile Pvt. Ltd. had taken a loan of Rs. 39.40 lacs on 1.3.1996 from the Corporation and the petitioner alongwith others had stood guarantor for the said loan. The additional loan of Rs. 15.30 lacs was also given for which Ganga Singh Lather had stood guarantor but the said loan was not disbursed to the company and adjusted in the company's loan account by the Corporation with malafide intention. A notice dated 24.11.1998 had been issued for recovery of the due amount along with interest amounting to Rs. 54,01,871/- and the Corporation had taken over the possession of the land, building, plant and machinery of the company on 14.1.1999. Since the industrial unit had been taken over and, therefore, the company could not utilize the building, plant and machinery and unwarranted action of the respondents had also affected the interests of the petitioner. The value of the unit was not less than Rs. 1.50 crores but the official valuer assessed the value at only Rs. 71.25 lacs. The Corporation had removed the valuable part of the plant and machinery and disposed of the same and only skeleton of machinery was lying in the premises of the company. The due amount was raised from Rs. 54,01,871/- to Rs. 6 crores and the Corporation imposed the interest and penalty even after 14.1.1999 upon the borrower which had affected the guarantors also. The property was not sold in the year 1999 and the loan amount could be adjusted from the real proceeds of the plant and machinery. Had the Corporation taken action in time, the liability of the guarantor could have been discharged automatically. The loanee had also filed a suit for declaration against the respondent-Corporation in which it was held that there were lapses on behalf of the respondent-Corporation vide judgment and decree dated 29.1.2009. The petitioner had requested the respondent-Corporation time and again to credit the amount of Rs. 71.25 lacs in the loan account of the company as on 14.1.1999 but they had not done so. Notice dated 18.8.2011 was served upon the petitioner whereby the Corporation informed the petitioner that it had received highest offer of Rs. 38.50 lacs only for the sale of the said property. Since the valuable parts of the plant and machinery had already been misappropriated by the respondent-Corporation, the actual price of the plant and machinery could not be fetched. The respondents were demanding more than Rs. 5 crores from the borrower as well as guarantor inspite of having taken over the possession on 14.1.1999. Accordingly, it was pleaded that respondent-Corporation was estopped from claiming any interest/penalty on the due amount of loan after 14.1.1999 and action of the Corporation to charge interest and penal interest was illegal and unconstitutional.
(2.) The respondent-Corporation filed written statement in which it took the plea that the petitioner had filed civil suit No. 130/09/08/2005 dated 30.1.2003 in the Court of Additional Civil Judge (Senior Division), Jind and the same was dismissed on 12.9.2007. The said fact had been concealed from this Court. It was averred that the petitioner was seeking quashing of the letter dated 18.8.2011 but the petitioner had not been able to point out any deficiency/illegality in the same and he was seeking direction to the Corporation to credit the amount of Rs. 71.25 lacs in the present writ petition filed in the year 2011 pertaining to taking over of the concern on 14.1.1999. This claim was time barred especially when the said pleadings had not been raised in the civil suit and principle of resjudicata would come into play. The original borrower had filed a civil suit seeking declaration for crediting Rs. 71.25 lacs from the date the property was taken over on 14.1.1999. The suit was dismissed on 29.1.2009 and the appeal before the Additional District Judge was also dismissed on 1.6.2010. The Regular Second Appeal No. 3191 of 2010 was pending in this Court. The relief prayed by the petitioner and principle borrower had been declined and the writ petition was not maintainable. M/s. Lather Textiles Pvt. Ltd. had approached the Corporation for a term loan of Rs. 39.40 lacs and additional loan of Rs. 15.30 lacs was sanctioned on 5.1.1996 and 24.11.1997 respectively and the said loans had been disbursed in terms of the mortgage deeds dated 1.3.1996 and 22.1.1998 respectively. The term loan was guaranteed by Shri Satpal Lather and Shri Ganga Singh Lather alongwith personal guarantees of Shri Vikram Lather and Shri Naresh Khatri, the two Directors of the Company. The additional loan was guaranteed by the petitioner. The company failed to repay the loan in terms of the mortgage deeds and started committing defaults. The entire loan was recalled and possession of the unit was taken over on 14.1.1999. The respondent-Corporation started making the efforts to auction the property and bids were invited and the auction was fixed on 25.5.1999, 2.8.1999, 17.9.1999, 27.10.1999, 24.11.1999, 29.12.1999, 24.1.2000, 1.3.2000, 28.3.2000, 26.4.2000, 23.5.2000, 27.6.2000, 3.8.2000, 31.8.2000, 4.10.2000, 15.11.2000, 20.12.2000, 14.2.2001, 27.3.2001, 26.4.2001, 21.6.2001, 19.7.2001, 7.9.2001, 18.10.2001, 5.12.2001, 28.2.2002, 10.4.2002, 24.5.2002, 26.6.2002, 31.7.2002, 11.9.2002, 23.10.2002, 4.12.2002, 6.1.2003, 10.2.2003, 26.3.2003, 18.6.2004, 30.8.2004 and 5.10.2004. However, no bid was received on the said dates. First bid of Rs. 4 lacs was received on 10.11.2004 but the sale process could not be continued as the Civil Court in Civil Appeal filed by M/s. Lather Textiles Pvt. Ltd. granted stay vide order dated 7.12.2004. The stay was vacated and bids were invited for 11.1.2008. The Corporation did not receive any bid. The Corporation received a bid of Rs. 8.10 lacs from one Rajbir Singh in the auction conducted on 4.3.2008 but the sale was cancelled due to litigation. The auction fixed on 4.6.2009 could not be held due to stay granted on 5.6.2009 and the sale was again held on 14.1.2011 and no bid was received. Subsequently, on 25.7.2011 bids were invited and sale was finalized for Rs. 38.50 lacs after making 46 attempts by the respondent-Corporation. After giving the credit of the said amount in the company account, the company and its guarantors were liable to pay the balance amount of Rs. 6,35,17,564/- in term loan account and amount of Rs. 2,42,39,161/- in additional loan account alongwith further interest w.e.f. 1.12.2011 and 1.2.2012 respectively. The present petition had been filed only to scuttle and delay the recovery of public money given as a loan.
(3.) It was further pleaded that the unit was in possession of the-Corporation and after taking over the possession theft had taken place and certain articles were stolen. The respondent-Corporation made enquiry into the entire incident and thereafter, the value of missing parts was recovered from the security agencies and were credited to loan account of the company. The Corporation had charged interest after 14.1.1999 as per policy of the Corporation and as per the terms and conditions of the loan agreement executed by the company with the Corporation. There was no practice/policy to deduct the assessed value of the property at the time of possession from the outstanding amount. The Corporation had made efforts to start the process of sale of unit by inviting tenders from time to time after taking over the unit but sale could only be effected in the year 2011. After crediting the amount of Rs. 38.50 lacs in the loan account of the company, an amount of Rs. 878 lacs was recoverable from the company and its guarantors.;