Anubha Rawat Choudhary, J. - (1.) Heard Mr. A.K. Sahani, counsel for the petitioner and Mr. Rajeev Ranjan, Senior counsel appearing for the respondents assisted by Mr. A.K. Yadav, Advocate.
(2.) This writ petition has been filed for the following reliefs: a) Quashing the letter No. 257 dated 7.7.2008 contained at Annexure-13 whereby the respondent no. 3 has said to have demanded an arbitrary amount by way of interest in the garb of recasting the accounts which due from the petitioner. b) Further prayer of the petitioner to accept the application dated 10/11/2007 contained at Annexure-11 filed by the petitioner for liquidation of dues under the Incentive Scheme of 2002 at Annexure-10 within a specified period.
(3.) The facts as submitted by the writ petitioner is that i) M/s Neel Kamal Engineering and Body Builder (P) Ltd., Ranchi was granted a term loan by the respondent no. 1. When the said Unit failed to pay dues, the respondent no. 1 took possession and advertised for sale by inviting tender on 14.12.1995. ii) On 22.7.1998, the respondent no. 1 decided to sell the mortgaged assets to the petitioner for Rs. 35 lakhs and was communicated to the petitioner vide letter dated 17.08.1998. Some of the relevant portion of the said minutes of meeting is as under: - The consideration money for sale will be Rs. 35.00 lakhs. - The purchaser will pay Rs. 8,75,000/- Including the earnest money of Rs. 20,000/- paid by the purchaser by Bank D.D. within one month. - The balance amount of Rs. 26.25 lakhs is converted into loan repayable is a period of 7 years in 28 installments. The payment of installment will begin from 31.12.1998 and will end on 30.09.2005. Installments will be payable on 31st Dec., 31st March, 30th June & 30th Sept. every year. - Interest will be calculated and realized on quarterly rest basis. Interest will be realized from the date of execution of sale agreement. iii) It was specifically mentioned in the sale order that after 21 days from the date of the order, if the unit is not retained by the original promoter and the purchaser makes aforesaid payment, the branch manager will immediately execute the sale order in favour of the purchaser and thereafter handover the assets to the purchaser in presence of two independents witnesses. At the time of handing over the assets, an inventory will be prepared which will be signed by all the concerned i.e. Branch Manager or his authorized officer, the purchaser and the witnesses as per the terms and conditions of the agreement. The process of executing of sale agreement and handing over possession of the unit must be completed within a period of one month from the date of credit of payment made by the purchaser in the account of the respondent no-1. iv) The petitioner made a representation dated 4.1.1999 before the respondent no. 2, the Managing Director, BSFC pointing out that certain litigation in connection with the property is pending and therefore, a request was made to pass a clear order to take immediate steps in the case before Debt Recovery Tribunal to release the property, in question, of the bank's liabilities. v) In pursuant to letter dated 4.1.1999 the respondent slept over the matter for long time and on 11.2.2000 vide letter no. 837 the Deputy Manager Zone-IV of the respondent no. 1 intimated the petitioner that the Corporation has absolute right to sell the mortgaged assets and he advised the petitioner to pay the initial cash down amount of sale in terms of sale order dated 17.8.98 within 21 days from the date of issuance of the letter failing which the sale finalized in favour of the purchase shall be treated as cancelled. vi) Thereafter, pursuant to the letter dated 11.2.2000 issued to the petitioner, the petitioner duly paid the amount of $ 22,000 which was equivalent to Rs. 9,65,665/- within the stipulated time as mentioned in letter dated 11.2.2000. vii) Thereafter, the agreement dated 26.07.2000 was entered into between the parties. As per the terms and conditions as contained in page 3 of the agreement, the consideration amount was of Rs. 35 lakhs for the entire assets the payments made by the petitioner was recorded. The balance amount of Rs. 26.25 lakhs was converted into loan repayable in a period of 7 years in 28 quarterly installment of Rs. 93,750/- each the payment of installment was to begin from 31.12.2000 and end on 30.09.2007. Installment was to be payable on 31st Dec., 31st March, 30th June and 30th September of each year. viii) The petitioner was given the possession of the property on 26.07.2000. ix) Counsel for the petitioner submits that from the perusal of the entire agreement, it appears that there is no clause in the agreement for charging interest for the period from 17.09.1998 (i.e one month after the date of letter by which the petitioner was intimated regarding the decision to sell the property to the petitioner) to 26.07.2000 (i.e the date of execution of the agreement). x) No notices was issued against the petitioner under the statutory provisions of section 29 & 30 of the BSFC Act. The petitioner came to know from a news item published in "Prabhat Khabar" on 21.09.2007 that amongst others the Unit of the petitioner has also been put on auction sale for which offers have been invited. The notice showed the outstanding dues of Rs. 15,45,174/- only. xi) Vide order no. 70 dated 09.03.2002 the Board of Directors of the Bihar State Financial Corporation in its meeting held on 12.02.2002 vide item no. 12671 came up with incentive scheme for settlement of cases where the borrowers supposed to deposit at least 5% of the balance outstanding with his application. xii) Pursuant to such scheme one time settlement, the petitioner on 11.10.2007 deposited 5% of the total outstanding amounting to Rs. 1,70,000/- only before the respondents. The counsel for the petitioner further submits that the petitioner further deposited Rs. 10,00,000/- against the grant of receipt No. 2806 dated 10.04.2008. xiii) The aforesaid application for one time settlement dated 11.10.2007 was processed by the respondent corporation. The respondent no. 3 by impugned letter dated 7.7.2008 refused to admit the balance dues in the account of the petitioner and by this letter a dues outstanding against the petitioner was shown as Rs. 74,76,383/- only. The reason which has been assigned in the impugned letter dated 07.07.2008 is as follows: "In course of verification it was found that interest on the consideration amount has not been charged for the period 17.09.1998 to 25.07.2000. In this regard you are advised to recall the sale order issued vide our H.O. Memo No. 275/98- 99 dated 17.09.98. You were required to complete the sale process within one month from the date of issue of sale order and interest has to be charged one month from the date of issue of sale order i.e. interest has to be charged w.e.f. 17.9.98. The subsequent extension for payment of initial cash down component was necessitated due to your subsequent request but the other terms of sale order remained unchanged. Thus interest from 17.9.98 to 25.7.2000 (from the date of opening of purchaser Account for payment of balance consideration amount) has to be charged and posted in the account." xiv) Counsel for the petitioner submits that the impugned order dated 07.07.2008 is totally against the terms and conditions of the sale order as well as the agreement entered into between the parties. Counsel for the petitioner submits that there is stipulation in the sale order that the interest would be charged from the date of entering into sale agreement and there is no condition prescribed in the sale agreement for charging interest for the said period from 17.9.98 to 25.7.2000. He further submits that the reason for non execution of sale agreement within a period of one month from the date of the communication of decision order was attributable to the respondents. xv) Counsel for the petitioner further submits that vide letter, which was received by the petitioner in connection with execution of the agreement, dated 11.02.2000 issued by the respondent no. 1, the petitioner has been intimated that the corporation has absolute right to sell the mortgaged assets and the petitioner was advised to pay the initial cash down amount of sale in terms of sale order dated 17.8.1998 within 21 days time from the date of issuance of the letter. xvi) Counsel for the petitioner further submits that the impugned order dated 07.07.2008 is beyond the terms and conditions of the sale order as well as the agreement entered into between the parties and accordingly, the same is fit to be set aside and accordingly the respondents be directed to accept the one time settlement of the petitioner pursuant to office order dated 09.03.2002 particularly in view of the fact that the petitioner had duly applied for one time settlement as per the scheme but the same could not materialize on account of the fact that after projecting the dues amounting to Rs. 15,45,174/- only the respondent unilaterally, arbitrarily and illegally raised outstanding amount of Rs. 74,76,383/- and it appears that this was only due to charging of interest for the period from 17.09.1998 (i.e one month after the date of letter by which the petitioner was intimated regarding the decision to sell the property to the petitioner) to 26.07.2000 (i.e the date of execution of the agreement).;