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2003 DIGILAW 1142 (SC)

Bank of India v. Surendra Steel Industries Private Ltd.

2003-09-11

ARUN KUMAR, RUMA PAL

body2003
ORDER : Ruma Pal, J. - The subject-matter of challenge in this appeal is an order passed by the Division Bench of the Orissa High Court on a writ petition filed by Respondent 1 against the appellant Bank and Respondent 2 which is Orissa State Financial Corporation (OSFC, for short). In the impugned judgment the High Court noted, inter alia, that Respondent 1 had been granted loans by the appellant Bank and OSFC but Respondent 1 was unable either to repay the same or to run its industrial unit successfully. OSFC had taken action under Section 29 of the State Financial Corporations Act, 1951 against Respondent 1 and seized the unit of Respondent 1. Respondent 1 filed a writ petition and pursuant to the interim order passed therein, the industrial unit was returned to Respondent 1. 2. After this, there were negotiations between OSFC and the appellant for reviving Respondent 1 and a revival scheme was in fact sanctioned under which both OSFC and the appellant were to further disburse finances to Respondent 1. It was found that the appellant did not release the amount which it was required to do under the revival package. Respondent 1 again defaulted in repaying the dues both to OSFC and the appellant. The High Court was of the view that this failure to pay was largely due to the non-release of funds under the revival package. Accordingly the second notice which was issued under Section 29 of the State Financial Corporations Act by OSFC and the action thereon by OSFC in taking possession of Respondent 1's unit were held by the High Court to be an exercise of power which was not reasonable and not in accordance with the principle laid down by this Court in Mahesh Chandra v. U.P. Financial Corpn., (1993) 2 SCC 279 , The order by which OSFC had taken possession of the unit was accordingly struck down. The Court was also of the view that the appellant Bank should not have been non-cooperative and it was because of the inaction on the part of OSFC and the Bank that the industry in question could not be revived. The Court was also of the view that the appellant Bank should not have been non-cooperative and it was because of the inaction on the part of OSFC and the Bank that the industry in question could not be revived. Accordingly, it was directed: (i) that the industrial unit should be returned to Respondent 1 forthwith, (ii) OSFC and the appellant Bank should take steps for releasing the balance amount as contained in the revival package (subject to the scrutiny as to its appropriate utilisation within two months from the date of receipt of the order), (iii) the repayment schedule would have to be re-phased, and (iv) Respondent 1 could approach both OSFC and the appellant Bank for any additional financial assistance, if required. 3. The unit was returned by OSFC to Respondent 1 on 20-8-1994. No further appeal has been preferred by OSFC from the order of the High Court. The Bank, however, has impugned the decision. On its special leave petition on 2-12-1994, this Court directed an interim stay of the operation of the order of the High Court. That interim order is still operating. 4. The learned counsel appearing on behalf of the appellant has submitted that the impugned order was liable to be set aside as the decision in Mahesh Chandra relied upon by the High Court had no application to the case of the appellant. It is submitted that in any event proceedings under Article 226 of the Constitution were not at all appropriate as in the ultimate analysis it was a question of contract whether any finances should be made available by the Bank to its constituents, if so, on what terms and whether there has been any breach of any contractual commitment. It is further submitted that the decision in Mahesh Chandra has been subsequently overruled by this Court in Haryana Financial Corpn. v. Jagdamba Oil Mills, (2002) 3 SCC 496 . Without prejudices to this it was submitted by the appellant that the facts on record amply proved that Respondent 1 had never disputed that the Bank had not made available finances to Respondent 1 in terms of the relief package. On the other hand, according to the appellant, it was clear from the correspondences exchanged between the parties that Respondent 1 defaulted in compliance with its obligations under the relief scheme. On the other hand, according to the appellant, it was clear from the correspondences exchanged between the parties that Respondent 1 defaulted in compliance with its obligations under the relief scheme. It is said that the Bank could not in the circumstances be called upon to release any further finances under the relief scheme. 5. OSFC also sought to support the appellant in its stand. Additionally, it was argued that the relief scheme was a composite package and that if this Court granted relief to the appellant as sought for by it, OSFC also should not be obliged to carry out its obligations under the scheme. 6. Learned counsel appearing on behalf of Respondent 1 has argued that the decision in Mahesh Chandra had not been wholly overruled by this Court in Haryana Financial Corpn. v. Jagdamba Oil Mills, (2002) 3 SCC 496 . It is stated that in any case the latter decision was distinguishable on facts. Our attention was drawn to the provisions of the scheme as culled out by the correspondence exchanged between the appellant Bank and Respondent 1. It is contended that under the scheme, the appellant was required to finance Respondent 1 by releasing an amount of Rs. 4,14,400 by way of working capital after the sanction of the scheme by OSFC and the Bank. This amount was for the first stage. Further, the working capital in the second, third and fourth stages was also to be released by the appellant Bank in instalments of Rs. 4,04,400, Rs. 2,07,200 and Rs. 2,02,700 respectively. Thus the total financial commitment of the Bank was of Rs. 12,43,000 for reviving Respondent 1. As against this commitment the appellant had released only an amount of Rs. 2,14,000 and that too almost a year later. It is said that because the appellant and OSFC defaulted in complying with the terms of the revival scheme Respondent 1 had been unable to run its industry successfully. It has also been drawn to our attention that pursuant to an interim order passed by the High Court in the writ proceedings an amount of Rs. 3 lakhs had been deposited by Respondent 1 with OSFC. Further the residential house of the Director of Respondent 1 had been mortgaged in favour of the appellant Bank. It has also been drawn to our attention that pursuant to an interim order passed by the High Court in the writ proceedings an amount of Rs. 3 lakhs had been deposited by Respondent 1 with OSFC. Further the residential house of the Director of Respondent 1 had been mortgaged in favour of the appellant Bank. It is said that these facts would go to show that Respondent 1 had at all material times carried out its obligations under the revival scheme and had cooperated in all respects but that the appellant Bank entirely arbitrarily sought to recall its loan from Respondent 1 and Respondent 2 wrongly took action under Section 29 of the State Financial Corporations Act. It is submitted that the High Court had correctly issued the directions it did having regard to the unreasonable stand taken by the two financial institutions. 7. At the outset, we would like to emphasise that the High Court erred in at all entertaining the petition of Respondent 1 under Article 226. This was not an appropriate jurisdiction to decide what was essentially a matter of pure contract which involved disputed questions of fact. We have perused the several documents on record which show that Respondent 1's grievance relating to the non-release of working capital by the appellant was not a grievance which had been raised at any time at least prior to the filing of the writ petition. The first letter which had been relied upon by Respondent 1 as containing the revival scheme dated 18-6-1998 shows that the proposal to finance Respondent 1 was conditional upon the performance of various actions by Respondent 1. It also appears that there was no commitment to actually release Rs 4.14 lakhs by way of working capital. It is clear from the document relied on as evidencing the 'relief scheme' that the working capital would be granted only after adjusting the out standings of Respondent 1 to the appellant Bank. It was expressly made clear that: 'Irregular portion of the balance amount that will be left in the account needs to be converted into working capital term loan. Branch has indicated the value of security held in the account at Rs. 1.19 lakhs. Therefore Rs. 0.89 lakhs can be taken as regular portion and the balance Rs. 2.09 lakhs as irregular portion in the account. Hence working capital term loan will be Rs. Branch has indicated the value of security held in the account at Rs. 1.19 lakhs. Therefore Rs. 0.89 lakhs can be taken as regular portion and the balance Rs. 2.09 lakhs as irregular portion in the account. Hence working capital term loan will be Rs. 2.09 lakhs which will carry an interest at 10% p.a. This account is to be repaid in 5 years' time i.e. 60 monthly instalments of Rs. 3485 with interest at 10% p.a.' 8. In fact, in the relief scheme, the proposed limit of working capital term loan only mentions the figure of Rs. 2.9 lakhs. 9. The last letter in connection with the revival package is dated 22-12-1988. There too the rehabilitation package refers the working capital term loan amount to be Rs. 2.09 lakhs. The approval of the rehabilitation package was recommended subject to the various conditions to be performed by Respondent 1 in addition to the recommendations made in the previous proposal of the Bank dated 18-6-1988. 10. It is not clear from the records whether the preconditions for the grant of the approval and release of funds were fulfilled by Respondent 1. But we can assume that the conditions were fulfilled as the amount of Rs. 2.14 lakhs was in fact released by the appellant Bank to Respondent 1 in July 1989. After this follows a series of letters by the appellant to Respondent 1 (starting with a letter dated 30-10-1989 up to letter dated 7-8-1991), in all of which the Bank had repeatedly recorded Respondent 1's failure to abide by the terms and conditions of the grant of finances in the relief package. It is also not admitted that the mortgage of the residential house had been created by the Director of Respondent 1 in favour of the appellant. The learned counsel appearing on behalf of Respondent 1 has firmly asserted that there was no default on her client's part and the house had in fact been so mortgaged. This would show that this was not such an issue which could have at all been decided conveniently under the Court's writ jurisdiction. 11. The reliance on the principle enunciated in Mahesh Chandra case1 which may have been apposite when the decision was taken by the High Court must be taken to be incorrect now in view of the subsequent decision of this Court expressly overruling the decision in Mahesh Chandra. 11. The reliance on the principle enunciated in Mahesh Chandra case1 which may have been apposite when the decision was taken by the High Court must be taken to be incorrect now in view of the subsequent decision of this Court expressly overruling the decision in Mahesh Chandra. In Mahesh Chandra case1 the Court had sought to lay down inter alia, that the action of the State Financial Corporation must meet the same standards that means justness, fairness, reasonableness and relevance. Assuming that this principle has not been set aside by this Court in the subsequent decision in Haryana Financial Corpn. v. Jagdamba Oil Mills, (2002) 3 SCC 496 having regard to the facts of the case it cannot be said that the Bank had taken any unreasonable action against Respondent 1 which could, even on the basis of Mahesh Chandra call for interference under Article 226. The Court under Article 226 should keep in view that: (Jagdamba Oil Mills case, SCC p. 506, para 13) '13. The fairness required of the Corporations cannot be carried to the extent of disabling them from recovering what is due to them. The matter can be looked at from another angle. The Corporation is an independent autonomous statutory body having its own constitution and rules to abide by, and functions and obligations 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 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 by it is not open to challenge. It is not for the courts or a third party to substitute its decision, however, more prudent, commercial or businesslike it may be, for the decision of the Corporation. As was observed by this Court in U.P. Financial Corpn. v. Naini Oxygen & Acetylene Gas Ltd., (1995) 2 SCC 754 in commercial matters the courts should not risk their judgments for the judgments of the bodies to whom that task is assigned. As was rightly observed by this Court in Karnataka State Financial Corpn. As was observed by this Court in U.P. Financial Corpn. v. Naini Oxygen & Acetylene Gas Ltd., (1995) 2 SCC 754 in commercial matters the courts should not risk their judgments for the judgments of the bodies to whom that task is assigned. As was rightly observed by this Court in Karnataka State Financial Corpn. v. Micro Cast Rubber & Allied Products (P) Ltd., (1996) 5 SCC 65 in the matter of action by the Corporation in exercise of the powers conferred on it under Section 29 of the Act, the scope of judicial review is confined to two circumstances i.e. (a) where there is statutory violation on the part of State Financial Corporation, or (b) where State Financial Corporation acts unfairly i.e. unreasonably. While exercising its jurisdiction under Article 226 of the Constitution of India, 1950 (in short 'the Constitution'), the High Court does not sit as an appellate authority over the acts and deeds of the Corporation. Similarly, the courts other than the High Courts are not to interfere with action under Section 29 of the Act unless the aforesaid two situations exist.' 12. The High Court certainly should not have directed the grant of further finances to Respondent 1 by the appellant at all. We have, therefore, no hesitation in setting aside the decision of the High Court insofar as it affects the appellant Bank and allowing this appeal. We make it clear that we have not gone into the issue whether Respondent 2, namely, OSFC, would be entitled to any consequential relief by reason of this Court's order. We make it clear that we have not considered OSFC's submissions in this regard in deciding the appeal. 13. The appeal is allowed without any order as to costs. Appeal allowed.