BHARAT MODERN RICE MILLS BINDKI ROAD v. U P FINANCIAL CORPORATION KANPUR
1996-05-06
B.M.LAL, J.S.SIDHU
body1996
DigiLaw.ai
B. M. LAL, J. Heard learned counsel for the parties. 2. By this petition under Article 226 of the Constitution, petitioner has prayed for issuance of an order, direction or writ in the nature of certiorari quashing the sale of the Unit M/s. Modern Rice Mills, Bindki, Fatehpur executed in favour of respondent No. 3 Sri Ved Prakash Gupta by the respondent Nos. 1 and 2, the U. P Financial Corporation, Kanpur and Sri L. N. Pandey, Deputy General Manager (Recovery), U. P. Financial Corporation, Kanpur. 3. It appears that the petitioner M/s. Bharat Modern Rice Mills, Fatehpur approached the U. P. Financial Corporation (for short the Corporation) for a term loan to run a Rice Mill which was sanctioned by the Corporation to the tune of Rs. 3. 34 lacs in the year 1973. An agree ment was arrived at between the petitioner and the Corporation according to which in the event of default in the payment of loan, the Corporation was entitled to recover the entire loan. 4. It further appears that for certain reasons petitioner could not repay a single paisa towards the said load in accordance with the terms and conditions of the said agreement despite opportunities for the same. Conse quently notices under Section 29 of State Financial Corporation Act were served on the petitioner and the possession of the Unit was taken over by the Corporation after completing necessary formalities. Ultimately on 30-12-1988 an advertisement was published in local daily newspaper dainik Jagtan Kanpur for the sale of the Unit and the offers received in pursuance thereof were opened before a Divisional Committee of the Corporation and lastly the Unit was sold and possession was handed over to the respondent No. 3 by the Corporation. Hence this petition. 5. Learned counsel for the petitioner contended that entire proceed ings under Section 29 of the Act are illegal in as much as the respondent No. 1 did not apply its mind to the various courses open to it under Section 29 of the Act and the respondent No. 1 did not consider even the course of leasing out the mill after taking it over, to the petitioner to run it for a season. 6.
6. Learned counsel further contended that the whole exercise of the provisions of Section 29 of the Act is arbitrary and unreasonable and the provisions of Section 29 of the Act are ultra vires. 7. Learned counsel for the Corporation contended that the Corpora tion had no option but to take recourse of the provisions of Section 29 of the Act for recovery of the public money as per the terms and conditions of the agreement and the impugned proceedings for recovery of loan are perfectly correct and legal. The provisions of Section 29 of the Act are not ultra vires. . 8. Learned counsel for the respondent No. 3, the auction purchaser strongly controverted the submissions made for petitioner and contended that after purchasing the Unit, the respondent No. 3 invested huge amount in renovation of the factory and bringing it to the running condition by his personal efforts, labour and investment of time and money both. The agreement and sale-deeds between the Corporation and the purchaser have become final and now it is not possible to put the clock back and unsettle the settled things. The writ petition lacks merit and is liable to be dismissed. 9. Having heard learned counsel for the parties it appears necessary to reproduce the provisions of Section 29 of the Act which reads as under : "29. Rights of Financial Corporation in case of default.- (I) Where any industrial concern, which is under a liability to the Finan cial Corporation under an agreement, makes any default in re-payment of any loan or advance or any installment thereof or in meeting its obligation, in relation to any guarantee given by the Corporation or otherwise fails to comply with the terms of its agreement with the Financial Corporation, the Financial Corporation shall have the right to take over the management or possession or both of the industrial concern as well as the right to transfer by way of lease or sale and realise the property pledged, mortgaged, hypothecated or assigned to the Financial Corporation. (2) Any transfer of property made by the Financial Corporation, in exercise of its powers under sub- section (1), shall vest in the transferee all rights in or to the property transferred as if the transfer had been made by the owner of the property.
(2) Any transfer of property made by the Financial Corporation, in exercise of its powers under sub- section (1), shall vest in the transferee all rights in or to the property transferred as if the transfer had been made by the owner of the property. (3) The Financial Corporation shall have the same rights and powers with respect to goods manufactured or produced wholly or partly from goods forming part of the security held by it as it had with respect to the original goods. (4) Where any action has been taken against an industrial concern under the provisions of sub-section (1), all costs, charges and expenses which in the opinion of the Financial Corporation have been properly incurred by it as incidental thereto shall be recoverable from the industrial concern and the money which is received by it shall in the absence of any contract to the con trary, be held by it in trust to be applied firstly, in payment of such costs, charges and expenses and, secondly, in discharge of the debt due to the Financial Corporation, and, the residue of the money so received shall be paid to the person entitled thereto. (5) Where the Financial Corporation has taken any action against an industrial concern under the provisions of sub-section (1) the Financial Corporation shall be deemed to be the owner of such concern, for the purpose of suits, by or against the con cern, and shall sue and be sued in the name of the concern. " A bare perusal of above mentioned provision indicates that it is analogous to Section 28 of the Industrial Financial Corporation Act, 1948, since repealed and confers vide powers on the State Financial Corporation to enforce its claims against industrial concerns without taking shelter of Court. The object is that the loans and advances granted by the State Financial Corporation be capable of speedy and in expensive realization The objective sought to be achieved is the promotion of industry and recycling of funds. The Corporation deals with public money for public benefit. It is required to discharge its functions on business principle due regard being had by it to the interest of industry, commerce and- general public. The Corporation is an extended arm of the welfare State to promote business potential of the country to benefit the common man.
The Corporation deals with public money for public benefit. It is required to discharge its functions on business principle due regard being had by it to the interest of industry, commerce and- general public. The Corporation is an extended arm of the welfare State to promote business potential of the country to benefit the common man. The Corporation is not supposed to give loans once and go out of business. It has to also recover them so that it can give fresh loan to others. The Corporation is not sitting on King Solmons mines. They too borrow money and have to pay interest thereon. 10. As regards the submissions of learned counsel for the petitioner in respect of validity or vires of Section 29 of the Act it is now well-settled that the provisions of Section 29 of the Act are constitutional. This ques tion has been examined in a number of cases, and it has been held that there is no arbitrariness in Section 29 of the Act. It is not violative of Article 14 of the Constitution of India merely because the Corporation acts as a Judge in its own case, or there is no hearing or appeal. This section is neither arbitrary nor ultra vires of the Constitution. [see Alka Ceramics v. Gujarat Financial Corporation, AIR 1990 Guj 105 ; M/s Hans Tool Co. v. Punjab Financial Corporation, (199 i) 1 Punj LR 316 ; U. P. Financial Corporation v. Goodman Drug House Ltd, AIR 1990 All 177 ]. 11. Of course the right of the Corporation to take over possession is subject to the rules of audi alteram portent, therefore, the Corporation must give notice to the industrial concern so that it could arrange repayment. In the instant case the Corporation issued notice under Section 29 of the Act on 15-3-1988 and granted one months time to the petitioner to deposit the amount. The Corporation waited for more than two months but the petitioner did not take any step to deposit the loan. Ultimately the Corporation took physical possession of the Unit on 25-5-1988. The Deputy Senior Manager (Law) of the Corporation has stated on oath that when the Corporation took physical possession of the Unit, then the Corpo ration was ready to release the Unit on the request of petitioner subject to deposit of Rs.
Ultimately the Corporation took physical possession of the Unit on 25-5-1988. The Deputy Senior Manager (Law) of the Corporation has stated on oath that when the Corporation took physical possession of the Unit, then the Corpo ration was ready to release the Unit on the request of petitioner subject to deposit of Rs. 1 lac immediately but the petitions was not able to deposit even Rs. 1 lac out of Rs. 14 lacs outstanding against the petitioner. There fore, in the instant case it is not that the principles of natural justice have not been observed. 12. No doubt, apart from Section 29, the Corporation can take steps for recovery of its dues under Section 31 of the Act also but when more than one choice is available to administrative authority, it has a certain amount of discretion available to it. It has a right to choose between more than one possible courses of action upon which there is room for reasonable people to hold different opinions as to which is to be preferred. But the Court cannot substitute its judgment for the judgment of the administrative authority in such cases. Only when the action of administrative authority is so unfair or unreasonable that no reasonable person would have taken that action, the Courts are not lagging behind in interfering in such cases. There may be cases where sudden taking over of possession under Section 29 of the Act may be necessary as otherwise the main assets may not be avail able by the time formalities are complied with. Thus, in exercise of its discretion, if the Corporation has chosen to take recourse of the provisions of Section 29 of the Act under the facts and circumstances of instant case, It cannot be said that the same was not permissible for the Corporation under law or the action taken pursuant thereto, is arbitrary. 13. Recently Apex Court has considered the power and position of Corporation under in U. P. Financial Corporation v. M/s. Naini Oxygen and Acetylene Gas Ltd. , JT 1994 (7) SC 551, and ruled as under : "however, we cannot lose sight of the fact that the Corporation is an independent autonomous statutory body having its own Constitution and Rules to abide by, and functions and obliga tions to discharge.
As such, in the discharge of its functions, it is free to act according to its own light. The views it forms and the decisions it takes are on the basis of the information in its possession and the advice it receives and according to its own perspective and calculations. Unless its action is mala fide, even a wrong decision taken by it is not open to challenge. It is not for the courts or third party to substitute its decision, however more prudent, commercial or business like it may be, for the decision of the Corporation. Hence, whatever the wisdom (or the lack of it) of the conduct of the Corporation, the same cannot be assailed for making the Corporation liable. " 14. Under the facts and circumstances of the instant case, the impugned action of the Corporation does not appear to have actuated with any malice rather the decision of the Corporation appears to have been taken on the basis of information in its possession and according to its own perspective in public interest which is in consonance with the objective sought to be achieved by the Act. 15. In view of the discussions made above this Court is of the consi dered opinion that the impugned actions of the Corporation do not call for any interference from this Court in its extraordinary writ jurisdiction. Writ petition therefore, fails and is dismissed. Petition dismissed. .