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1991 DIGILAW 1311 (ALL)

U. P. Financial Corporation v. Colour Coats & Chemical Corporation

1991-10-11

SH.D.S.SINHA, SH.N.N.MITHAL

body1991
JUDGMENT N.N. Mithal, J.-This first Appeal From Order has been filed by the U.P. Financial Corporation against an order passed by the Trial Court on 7.5.1991 whereby the application moved by the plaintiff respondent for a temporary injunction has been allowed. 2. According to the facts brought on record the plaintiff had setup an industry in the industrial area of Mathura and started production some times in August, 1978. The appellant and the U.P. Small Industrial Corporation, U.P., State Industrial Development Corporation and the Punjab National Bank had committed to provide working capital but the same was not made available on account of inter-se wranglings between them. The plaintiffs allegation was that the loan was advanced to it after long delay and because of lack of coordination between the various departments the plaintiff could not put the industry in a proper running condition in the meantime the appellant raised a demand for the repayment of loan instalment from it. It appears that the controversy between the parties could not be resolved for a long time but ultimately on 24.2.1990 the appellant made a proposal for settlement of loan if the plaintiff paid Rs. 3,22,000/- in three equal instalments payable on 30th March, 1990, 30th June, 1990 and 30th September, 1990. The aforesaid letter dated 24th March 1990 was itself received by the plaintiff on 30th March, 1990 and it was impossible for it to make any arrangement for the payment of the entire amount of Rs. 1,08,000/- on the same day. Despite this difficulty the plaintiff managed to pay Rs. 25,000/ by two cheques of the same date but one of them was dishonoured by the bank and immediately thereafter the plaintiff paid the amount through bank draft drawn on Union Bank of India, Mathura on 30th April, 1990. Some other payments are also alleged to have been made but we are not concerned about the same in the present appeal. The case of the plaintiff further was that had it been requesting the appellant to give reasonable time for complying with the one time settlement proposal and also wrote on 2.5.1990 to grant time for making all the payments yet the said request was turned down and on 8.5.1990 the one time settlement proposal was also cancelled. The case of the plaintiff further was that had it been requesting the appellant to give reasonable time for complying with the one time settlement proposal and also wrote on 2.5.1990 to grant time for making all the payments yet the said request was turned down and on 8.5.1990 the one time settlement proposal was also cancelled. Thereafter the defendant appellant started threatening the plaintiff for recovery of the amount by taking possession of the premises and auctioning the same. Consequently the present suit was filed on 11.7.1990 and the plaintiff also prayed for a temporary injunction to restrain the defendant from interfering in the running of the industry by the plaintiff by sale of the same of by taking over possession of the said industry. The application was resisted by the appellant on several grounds and it was mentioned that the possession over the property had already been taken and the same had been allotted to a third person. Several legal pleas were also taken and it was urged that no injunction could be granted against the appellant to restrain it from realising the amount due from the plaintiff. 3. The Trial Court was impressed by the pleas of the plaintiff and came to the conclusion that the conduct of the defendant appellant had not been fair and it should have given reasonable sufficient time to enable the plaintiff to pay up the instalments under the one time settlement scheme although it was also of the view that at least when, according to the plaintiff's own admission, it was liable to pay Rs. 3,22,000/- to the defendant Corporation. The said amount ought to be paid. 4. However, by applying the ratio of decision in Gujarat State Financial Corporation v. Lotus Hotel Ltd.1983 S.C. page 848, where the Supreme Court applied the principles of promissory estoppel it has been held that having initially assured the borrower to advance the money it could not refuse to pay the loan after the project was half way through. The Trial Court has proceeded to say further that applying principles of natural justice and common law rights that defendant was not entitled to Claim interest on the loan advanced and therefore, the recovery issued for Rs. 3,87,811/- against the plaintiff as arrears of land revenue and invalid and consequently the unit could not be sold. We have heard Sri. The Trial Court has proceeded to say further that applying principles of natural justice and common law rights that defendant was not entitled to Claim interest on the loan advanced and therefore, the recovery issued for Rs. 3,87,811/- against the plaintiff as arrears of land revenue and invalid and consequently the unit could not be sold. We have heard Sri. R.P. Misra for appellant and Sri. S.V. Goswami for the plaintiff respondent. On a consideration of the entire material before us we are of the opinion that the learned Trial Court has totally misconstrued the decision reported in 1982 Supreme Court page 848 and was not right in invoking the principles of natural justice in holding that the defendant was not entitled to claim interest on the amount advanced. The Financial Corporation has been established only for the purpose of extending financial aid to the intending entrepreneurs but its activities are governed by the provisions of the State Financial Corporation Act. Once the amount of loan becomes due against the industry it has a right to demand the same and on its non payment it has the option either to take over the management or the unit itself. It also has a right to realise the amount by sale of the unit. If the plaintiff wants to challenge the right of the Corporation in this respect it has either to show that the amount of loan had been repaid or it was not due against it. It can also question with right of the Corporation on any other legal plea but merely because there has been some delay in advancing the loan or some such reason it cannot be said that the demand made by the Corporation was not justified. 5. In the instant case it is not relevant to consider the earlier history of the controversy between the parties because in the month of March 1990 all previous controversy was put an end to when the Financial Corporation made an offer of one time settlement and demand a sum of Rs. 3,22,000/- payable in three instalments in full and final settlement of its claim. Once this stage had come it was for the plaintiff to have either accepted the proposal or to refuse it. From the plaint it is not evident as to which of the two courses had been adopted by the plaintiff. 3,22,000/- payable in three instalments in full and final settlement of its claim. Once this stage had come it was for the plaintiff to have either accepted the proposal or to refuse it. From the plaint it is not evident as to which of the two courses had been adopted by the plaintiff. Assuming that the plaintiff had accepted the proposal and in pursuance thereof had given two cheques of Rs. 25,000/- each of 30th March, 1990, it was incumbent on it to have paid the entire amount of the first instalment and thereafter to pay the remaining instalment as and when the instalments become due. This however, was not done by the plaintiff. 6. The grievance of the plaintiff in this regard is that the letter dated 24.3.1990 was infact delivered to the plaintiff on 30th March, 1990 and that was the last date on which the payment had to be made. The plaintiff would, therefore, be justified in urging that a reasonable time had not been given to it for complying with the conditions offered in the proposal. It is alleged that by letter dated 2.5.1990. the plaintiff had prayed for time to pay up the first instalment a part of which had already been paid but the said request was turned down by the Financial Corporation and even the proposal was withdrawn. Unfortunately the plaintiff had not filed the copy of the letter dated 2.5.1990 nor the reply sent by the Financial Corporation withdrawing the proposal. In the absence of the same it is not possible for this Court to come to the conclusion as to whether any genuine ground for extension of time existed and to know the reasons which prompted the Financial Corporation to reject this prayer. In our opinion prima facie there is nothing on the record to show that the request was refused on an unreasonable ground. It was for the plaintiff to place on record the necessary documents in this regard. 7. From the discussions it is clear that there may be some ground for the plaintiff to urge that the letter dated 24.3.1990, was merely a pretext and the Financial Corporation did not genuinely want the plaintiff to pay up the amount and save the industry. 7. From the discussions it is clear that there may be some ground for the plaintiff to urge that the letter dated 24.3.1990, was merely a pretext and the Financial Corporation did not genuinely want the plaintiff to pay up the amount and save the industry. This, however, will yet have to be considered at the trial of the suit Even assuming it was so, we can only say that the plaintiff has prima facie case in his favour on facts. However, there is another hurdle in the way of the plaintiff. Once a demand notice had been issued to the plaintiff and he had failed to pay the amount demanded, the Corporation becomes entitled to proceed to recover the amount. Admittedly the recovery certificate had been issued against the plaintiff. The only option left thereafter with the plaintiff to approach the authority which is taking proceedings for realisation of the dues but no temporary injunction can be granted in the suit for staying such recovery under adequate security is furnished. This is so in view of Proviso (q) to Rule 2(2) of Order 39 of the Code as applicable in U.P. Provision of Section 230 of the U.P. Z.A. & L.R. Act will also come in the way of the plaintiff. In view of this we are of the opinion that the Court below was not legally right in granting the temporary injunction against the Financial Corporation. 8. Accordingly the appeal is allowed and the order of the Court below is modified. It is directed that the plaintiff respondent may now deposit a sum of Rs. 3,22,000/- in three equal instalments first of which will be deposited by 15th November, 1991 and thereafter on 15th February, 1992 and 15th May, 1992 respectively. Should any of the instalment be not paid in full and before the appropriate date the appellant will be entitled to take such further proceedings for the realisation of the amount due to it as it may deem fit in accordance with law. In case the plaintiff deposits the amount as aforesaid the Financial Corporation shall restore the unit to the plaintiff immediately on the payment of the last instalment in the same condition in which it had been taken by it on 31st July, 1990. In the circumstances of the case the parties are however, left to bear their own cost.