APARESH KUMAR SINGH, J. - (1.) HEARD learned counsel for the parties. The petitioner is aggrieved by the demand of Rs. 33.77 lacs communicated vide letter dated 11.1.2002 as also the communication dated 1.10.2001 showing split details of the amount as Rs. 21,88,841.49 and Rs. 11,88,385.89 as outstanding dues against the petitioner in respect of the unit. M/s. Electrodes India, a partnership firm on account of two loans disbursed to the petitioner by the Corporation on 22.2.1980 and 31.3.1981.
(2.) THE instant writ petition has a chequered history and at least for two rounds the litigations went upto Supreme Court for the action taken by the Corporation for recovery of outstanding dues from the petitioner's unit. Bereft of unnecessary details, it would be proper to straight way refer the order passed in Civil Review No. 34/96(R) dated 20th August, 1999 by the learned single Judge as this order was upheld in LPA No. 351/99(R) vide judgment dated 31st July, 2000 as it and the Special Leave Petition against the same being SLP No. 17310/2000, dismissed on 12.7.2001 decides the bone of the contention between the petitioner and the Corporation relating to the liability of the petitioner's unit. The said Civil Review was decided on remand over the specific question as to the date till which the petitioner is liable to pay interest to the Corporation over the outstanding dues, which also involved declaration over the controversy as to when the possession of the petitioner's unit was handed over to the Corporation. The review Court in Civil Review No. 34/96(R) vide judgment dated 20th August, 1999 held in the following terms : '.....In order to give a definite date upto which, the interest is to be calculated, I have to find out the date on which possession of the unit was handed over or taken over by the parties on the basis of the evidences produced by them. Admittedly a writ petition was filed in the year 1986 being CWJC No.1183/86R by the petitioners against the proposed action of the Corporation to put the unit in auction. In that writ petition interim order, was passed on 28.8.1986 staying the auction and taking over possession of the condition that the petitioners shall deposit a total amount of Rs. 2,50,000/ - by 31st March, 1987. It is also not disputed that the petitioners failed to deposit the said amount and this Court, by order dated 13.4.1987 held that the interim order stood automatically vacated after 31st December, 1986. The petitioners' case is that when the petitioners failed to deposit the amount in terms of the interim order by 31st March, 1987, the possession of the unit was handed over to the Corporation in 1987. This fact finds support from the letter dated 27.5.1987 issued by the Patna Office of the Corporation to the Branch Manager of the Corporation at Jamshedpur directing him to prepare an inventory of the assets and take over charge of the mortgaged assets of the unit and proceed for auction under Sections 29 and 30 of the said Act. A copy of the said letter is Annexure 3 to the affidavit filed by the petitioners. It further appears from the letter dated 11.6.1987 which is Annexure -C to the affidavit that by the said, the petitioners handed over possession of the assets of the unit to the Branch Manager of the Corporation. The Corporation in its affidavit enclosed a copy of the profit and loss account for the year upto 31st March, 1989 to show that the possession of the factory was not handed over by the petitioners. However, no statement of profit and loss account has been submitted by the petitioners to the Corporation after March, 1989. The Corporation also relied upon the letter dated 8.9.1990 (Annexure 7) to show that by the said letter the petitioners informed the Branch Manager of the Corporation that the unit was registered as sick unit by the Directorate of Industries, Bihar, Patna. On the basis of this letter the lawyer for the Corporation submitted that at least till 1990 possession was not handed over by the petitioners to the Corporation. 8. Admittedly, after 1988 no step was taken by the Corporation for auction sale of the factory. If the factory was in possession of the petitioners even after 1988 then no reason has been assigned by the Corporation as to why nothing was done by it for the recovery of the dues when admittedly the interim order passed by this Court in CWJC No. 1183/86, stood vacated by 31st December, merely because the Industries Department registered the unit as a sick unit, it cannot be presumed that the factory was in possession of the petitioners. The inaction on the part of the Corporation from 1987 after the interim order stood vacated, strongly suggests that the factory was not in a running condition and the petitioners lost interest in the factory which was handed over to the Corporation. 9. In any view of the matter there is no evidence that after March, 1989 the petitioners were in possession of the factory and production was going on in the said factory. It would, therefore, be just and proper to hold that the petitioners would not be liable for payment of interest after 31st March, 1999 for the reason that there are sufficient evidence to suggest that possession of the factory was handed over by the petitioners in 1988. The reason for fixing 31st March, 1989 as the date upto which the interest is to be calculated, is that although possession was handed over sometime in 1988 but the petitioners submitted profit and loss account upto 31st March, 1999. 10. Having regard to the facts and circumstances of the case, this review application is allowed and the order dated 16.1.1995 passed in CWJC No.2789/94R is modified to the extent that interest shall be calculated upto 31st March, 1989."
(3.) THE extract of the judgment, which is quoted herein above, would show that the issue was decided by holding that the petitioner would not be liable for payment of interest after 31st March, 1989 for the reason that there are sufficient evidence to suggest that the possession of the factory was handed over by the petitioner in 1988, which is evident from the operative portion of the judgment.;