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2005 DIGILAW 878 (RAJ)

Brothers Pharma Pvt. Ltd. _ v. Rajasthan Financial Corporation

2005-03-21

K.S.RATHORE

body2005
Honble RATHORE, J.–This writ petition is filed by the petitioners seeking writ, order or direction directing the respondent RFC to obey the direction of the Settlement Committee and thereby accept a sum of Rs. 50,97,830.00 with simultaneous release of all mortgaged document lying with the Rajasthan Financial Corporation. It is further prayed that the aforesaid amount should be accepted as full and final payment of all dues of the respondents in view of the settlement of the matter by the Settlement Committee. (2). The brief facts of the case are that the petitioner company is manufacturing drugs and supplying drugs to the Govt. of India, Ministry of Defence and Ministry of Health and Family Welfare. (3). The petitioner companies have applied for loan from the RFC and total loan amount to the tune of Rs. 37.10 lacs was disbursed from time to time and documents were executed on 17.12.86 for loan of Rs. 13.50 lacs, on 7.10.87 for loan of Rs. 13 lacs and on 27.1.88 for loan of Rs. 3.60 lacs. (4). On account of default of making repayment of the loan amount respondent issued notices and the petitioner company against the notice dated 19.2.2000 filed a writ petition No. 850/2000, which was decided on 21.11.2000. This Court in the aforesaid writ petition has observed as under: ``Looking to the facts and circumstances of the present case in totality, I hereby direct the petitioner No. 1 to deposit 50% of the amount sought to be recovered from it in pursuant to impugned notice Annexure-19 to the writ petition within a period of two months from today and remaining amount is made payable in two equal installments thereafter within a period of six months. After payment of 50% amount of term loan by petitioner will furnish a statement of account to the petitioner indicating therein the balance amount recoverable from it within 15 days thereafter and the petitioner would pay 50% amount according to statement of account furnished to it by the respondent on or before expiry of five months from today and remaining entire amount is made payable on or before expiry of eight months from today. It is made clear that if the petitioner fails to comply with any of the conditions enumerated herein above the respondent could be at liberty to recover the whole amount by invoking the provisions of Section 29 of the Act of 1951. It is made clear that if the petitioner fails to comply with any of the conditions enumerated herein above the respondent could be at liberty to recover the whole amount by invoking the provisions of Section 29 of the Act of 1951. With the aforesaid observations, the instant writ petition is finally disposed of at admission stage. (5). Against the aforesaid judgment rendered by the single Bench the petitioners preferred an appeal before the Division Bench and the same was also dismissed. The judgments rendered by the Division Bench and the single Bench have been assailed by the petitioner before the Supreme Court and the Honble Supreme Court also dismissed the Special Leave Petition. (6). During the pendency of the appeal the matter was taken up by the empowered State Level Settlement Committee and pursuant to the direction so made the Settlement Committee has passed an order while dealing with the matter of the present company at Item No. 23, which is reproduced hereunder: ``M/s Brothers Pharma (p) Ltd. M/s Brothers Laboratories (p) Ltd. VKIA (ARRC case) Shri Ramesh Taneja, Managing Director and Smt. Khurana, Director, represented the cases. It was informed by them that the Corporation during the period 1995-96 to 1999-2000 they could not make the payment to the Corporation due to substantial amount paid by them to Income Tax Department. The Committee noted that the assets are under possession since 5.3.2001 but the assets could not be disposed off even after making 2 attempts for sale. The MRV of the assets of both the compartment Rs. 149.29 lacs. The outstanding dues of Income Tax Department is Rs. 357.00 lacs and the Income Tax Department has claimed first charge tax liabilities to the extent of Rs. 312 lacs is also recoverable. The Committee also noted that one room of the Factory is having locks of Defence Department. Government of India in accordance with the decision of Honble High Court. Delhi and as such even if assets are disposed off the purchaser cannot tamper with the assets lying in the said sealed room and the locks cannot be broken till disposal of the case pending in the Delhi High Court and the possession of said room if assets are disposed of, shall be subject to Delhi High Court orders. Delhi and as such even if assets are disposed off the purchaser cannot tamper with the assets lying in the said sealed room and the locks cannot be broken till disposal of the case pending in the Delhi High Court and the possession of said room if assets are disposed of, shall be subject to Delhi High Court orders. Shri Taneja and Smt. Bela Khurana informed the committee that since factory has been taken over by the Corporation, they do not have liquid cash and it is not possible for them to make payment equivalent to the 10% of the balance outstanding amount immediately for taking back the possession from the Corporation. Looking to the above background of the case the Committee decided to settle the account on simple documented rated of interest upto the date of take over 5.2.2001 on the following terms and conditions. (a) A sum of Rs. 2.00 lacs shall be deposited to their loan account possession of both the units shall be handed over back to them on as is where is basis (b) Further sum of Rs. 9.50 lacs shall be paid by them before March 31, 2002. (c) The remaining balance amount would be paid within 2 years effective from April 2002 to 31st September 2002 and there after interest 15% p.a. Shall be charged upto the date of payment the March 31, 2004. (d) The company shall withdraw the court case immediately. Shri Taneja and Smt. Bela Khurana consented for the above settlement. (7). It is not disputed that the petitioner deposited a sum of Rs. 2 lacs pursuant to the settlement on 10.12.2000 and Rs. 9.50 lacs has been deposited. In piece meal the amount of Rs. 9.50 lacs has been deposited on following dates i.e., on 13.6.2002 Rs. 3.75 lacs, on 1.9.2002 Rs. 5.35 lacs and on 21.9.2002 Rs. 40,000/-, thus total Rs. 9.50 lacs has been deposited but admittedly after 31.3.2002. It is also not disputed that this period is also condoned. (8). Thereafter, as per the settlement the petitioners have to deposit entire payment of loan on or before 31.3.2004. The dispute arose since the petitioners have not deposited the full and final payment on or before 31.3.2004. (9). The reason of not depositing the entire amount has been stated by the petitioner that the difference of a sum of Rs. (8). Thereafter, as per the settlement the petitioners have to deposit entire payment of loan on or before 31.3.2004. The dispute arose since the petitioners have not deposited the full and final payment on or before 31.3.2004. (9). The reason of not depositing the entire amount has been stated by the petitioner that the difference of a sum of Rs. 5 lacs is on account of respondent demand towards administrative expenses, legal expenses and other expenses whereas settlement committee not issued any order for payment of those charges rather what was settled is that the due loan amount payable should be paid with simple documented rate of interest, hence on account of illegal demand of the respondents, unnecessarily raised a dispute only with a view to frustrate the settlement because so far as the petitioner companies are concerned, they had taken a facility of loan from other institutions on the condition that the entire payment of Rs. 50,97,830.00 would be released by the financial institutions to the Rajasthan Financial Corporation on the condition mortgaged document lying with the financial Corporation be given to them. (10). It appears that since with this condition the RFC is not agreed, therefore, the amount outstanding against the petitioners has not been deposited as the petitioners are not able to get the loan from other financial institutions. (11). It appears from the perusal of present writ petition that this is only controversy in the writ petition as the petitioners claim the relief from this Court to release the document and further seeks direction to direct the RFC to obey the direction to direct the RFC to obey the direction of the Settlement Committee and to accept a sum of Rs. 50,97,830.00 and simultaneously release all mortgaged document lying with the Rajasthan Financial Corporation. (12). It is also not disputed that the settlement is arrived on 7.12.2001 and since then the aforesaid amount has not been deposited. Time and again the RFC has provided the time to deposit the amount but the petitioners have failed to deposit the same. In the year 2004 by way of this writ petition the petitioners are again seeking the same relief, which is granted by the Settlement Committee. (13). Time and again the RFC has provided the time to deposit the amount but the petitioners have failed to deposit the same. In the year 2004 by way of this writ petition the petitioners are again seeking the same relief, which is granted by the Settlement Committee. (13). The Court passed the interim order dated 29.10.2004 in the presence of parties and the direction was issued to the Managing Director, RFC and Empowered State Level Committee to reconsider and finally settle the matter within a period of 15 days in view of the Settlement Schedule-A. The petitioners were directed to make the entire payment in accordance with the settlement arrived between the petitioner and the State Level Committee within a period of 15 days, thereafter. (14). Pursuant to the direction issued by this Court dated 29.10.2004 the meeting of the Empowered State Level Committee was held on 2.12.2004. In relevant agenda at item No. 23 after reiterating the settlement this is taken by the Settlement Committee on 7.12.2001 and the case of the petitioners was considered. (15). It was again observed that from 2001 to 2.12.2004 the petitioners failed to make the entire payment decided in the Settlement Committee. Fresh proposal was given to the petitioner to deposit the same with interest and sympathetically it was observed that said amount be deposited with interest as a substantial relief has already been granted by the Committee and there is no justification at the part of the company for not making the payment as per the settlement already made and agreed by the directors of the company. The Committee after considering further waived the payment of about Rs. 2.05 lacs and the representatives were advised by the Committee to adhere the decision made by the SLC on 7.12.2001. (16). The Managing Director of the company has refused to agree to the proposal made by the Committee in compliance of the orders of this Court by raising unsubstantiated and irrelevant objections and disputes regarding the amount payable. (17). Since the petitioner himself refused to comply with the SLC decision dated 7.12.2001 and raised the objections, therefore, the RFC has decided to recover the entire amount and to this effect they have issued a notice dated 05.02.2005 (Annex.R/3) raising the demand of entire amount. (18). (17). Since the petitioner himself refused to comply with the SLC decision dated 7.12.2001 and raised the objections, therefore, the RFC has decided to recover the entire amount and to this effect they have issued a notice dated 05.02.2005 (Annex.R/3) raising the demand of entire amount. (18). Learned counsel for the petitioners after referring the interim direction dated 29.10.2004 of this Court submits that the RFC has not complied with the direction issued by this Court in true and letter spirit and arbitrarily raised the demand to the tune of more than Rs. 2 crores. This shows their conduct that they do not want to settle the account of the petitioners company. (19). Per contra learned counsel appearing for the RFC has submitted that conduct of the petitioners is that they never willing to deposit the outstanding amount as it appears that this Court in the earlier writ petition has given the direction to deposit 50% of the amount sought to be recovered from it in pursuant to impugned notice but the same has not been deposited even otherwise the petitioner has not fulfilled the direction issued by this Court passed in the earlier writ petition. The respondent has considered sympathetically and settlement is arrived on, that too was not complied even several opportunities to deposit the entire amount has been given to the petitioner. (20). To this effect learned counsel for the respondent has referred a judgment rendered by the Honble Supreme Court in the case of Orissa State Financial Corporation & Anr. vs. M/s Hotel Jogendra reported in JT 1996 (5) SC 322 wherein the Honble Supreme Court has held that default in repayment of loan-Petitioner taking recourse to court with the object of delaying the repayment of dues-Dilatory tactics defeat the public policy and the court process becomes an instrument of abuse-Court to protect only honest and sincere litigants. (21). After referring this judgment the respondent demonstrated before this Court that the petitioners cannot said to be honest and sincere litigants as they defaulted to deposit the amount. Even in the year 2004 the Settlement Committee has reiterated the SLC Committee held on 7.12.2001. (22). Mr. Rastogi also referred the judgment of Honble Supreme Court reported in JT 2002(1) SC 482 (Haryana Financial Corporation & Anr. vs. M/s Jagdamba Oil Mills & Anr. Wherein the Honble Supreme Court has observed that fairness cannot be a one-way street. Even in the year 2004 the Settlement Committee has reiterated the SLC Committee held on 7.12.2001. (22). Mr. Rastogi also referred the judgment of Honble Supreme Court reported in JT 2002(1) SC 482 (Haryana Financial Corporation & Anr. vs. M/s Jagdamba Oil Mills & Anr. Wherein the Honble Supreme Court has observed that fairness cannot be a one-way street. Corporations borrow money from the government or other financial corporations and are required to pay interest thereon. Where the borrower has no genuine intention to repay and adopts pretexts and ploys to avoid payment, he cannot make the grievance that corporation was not acting fairly, even if requisite procedures have been followed. (23). It was further observed that 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. (24). Herein the instant case, looking to the facts and the circumstances of the case the petitioners earlier also challenged the notices issued by the RFC by way of filing writ petition, special appeal and SLP before the Honble Supreme Court but he failed to get any relief from the Honble Courts. Although the single Bench has granted relief to the petitioner but the same has not been availed even the RFC sympathetically considered. Despite of the directions issued by the single Bench, which is upheld by the Supreme Court, the settlement is arrived between the parties on 7.12.2001, which is partly complied with by the petitioners by making payment in piece meal. (25). But as per the condition they have to deposit the entire outstanding even before 31.3.2004. Further one month time is also given but the petitioners failed to deposit the same. (26). In view of the ratio decided by the Honble Supreme Court I have no hesitation to observe that the petitioners are not honest and sincere to make the payment of outstanding amount. (27). Even by this Court on 29.10.2004 direction is issued to the Managing Director, RFC and Empowered State Level Committee to reconsider and finally settle the matter. (26). In view of the ratio decided by the Honble Supreme Court I have no hesitation to observe that the petitioners are not honest and sincere to make the payment of outstanding amount. (27). Even by this Court on 29.10.2004 direction is issued to the Managing Director, RFC and Empowered State Level Committee to reconsider and finally settle the matter. They held the meeting pursuant to this direction and reconsidered the matter. Again the petitioners did not agree with the proposal of the Empowered State Level Committee and failed to deposit any amount and raised disputes. (28). In view of the ratio decided by the Honble Supreme Court in the case of Haryana Financial Corporation & Anr. vs. M/s Jagdamba Oil Mills & Anr. (supra), present case is not such case where any interference is required. (29). As observed herein above the relief claimed by the petitioners cannot be granted by this Court and it appears that the petitioners adopted dilatory tactics. It is clear that the loan was disbursed in the year 1987 and till today the petitioners wanted to delay in making the payment for one and other pretext. (30). Consequently, the reliefs claimed by the petitioners cannot be granted and the writ petition fails and is herewith dismissed.