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2007 DIGILAW 396 (CAL)

Quality Steel Wire Product Pvt. Ltd. v. W. B. Financial Corporation

2007-06-06

JAYANTA KUMAR BISWAS

body2007
ORDER :- The petitioners took out this writ petition dated April 26th, 2006 questioning the sale notice published by West Bengal Financial Corporation in the Economic Times on April 18th, 2006. The notice was published for sale of land and other properties of the first petitioner. 2. Sometime in April 1984 the first petitioner took a Rs. 30 lakh term loan from the corporation. The properties sought to be sold were placed as security. Because of defaults committed by the first petitioner in repayment of the loan on December 31st, 2001 the amount payable by it became Rs. 2,29,64,638.16. After considering the first petitioner's proposal dated January 5th, 2002, the corporation agreed to settle the accounts on payment of Rs. 29 lakh at one stroke positively by March 27th 2002. Making the offer the corporation wrote letter dated March 1st, 2002 mentioning that in case of non-payment within the period, that offer would stand automatically cancelled and the previous position would be restored in all accounts of the first petitioner. 3. The amount was not paid by March 27th, 2002, and on the other hand by a letter dated March 27th, 2002 the first petitioner requested the corporation to extend the period up to June 31st (sic) 2002. the settlement did not materialise and the offer of the corporation stood automatically cancelled. Since the first petitioner did not take any step for payment, the corporation issued notice dated March 21st, 2006 under S. 29(1) read with S. 30 of the State Financial Corporations Act, 1951. It was stated that the amount payable on December 31st, 2005 was Rs. 2,20,48,598.14. By a letter dated March 29th, 2006 the first petitioner requested the corporation to take Rs. 29, lakh by way of full and final settlement of the accounts. The first petitioner also prayed for instalment. The corporation declined to accept the offer. It then published the sale notice on April 18th, 2006. 4. Counsel for the petitioners argues that the corporation was under an obligation to go by its offer dated March 1st, 2002. I am unable to agree with him. It was specifically mentioned in that offer that on the first petitioner's failing to pay Rs. 29 lakh at one stroke positively by March 27th, 2002 that offer would stand automatically cancelled. Counsel for the petitioners argues that the corporation was under an obligation to go by its offer dated March 1st, 2002. I am unable to agree with him. It was specifically mentioned in that offer that on the first petitioner's failing to pay Rs. 29 lakh at one stroke positively by March 27th, 2002 that offer would stand automatically cancelled. Admitted position is that the first petitioner did not pay the amount within the period mentioned in the offer letter. Hence it must be held that the corporation is fully justified in saying that the offer had stood automatically cancelled. On the basis of Smt. Periyakkal v. Smt. Dakshyani, AIR 1983 SC 428 ; Smt. Mangala Ghosh v. Rabindra Nath Hazra, AIR 1987 Cal 307 ; and Salem Advocate Bar Association v. Union of India, AIR 2005 SC 3353 , counsel for the petitioners submits that since the Court possesses power to enlarge time for making payment,in exercise of my writ powers I can enlarge the time fixed in the offer letter dated March 1st, 2002 for permitting the first petitioner to pay Rs. 29 lakh in one stroke towards full and final settlement of the accounts. In support of the proposition counsel has also relied on the provisions in S. 148 of the Code of Civil Procedure, 1908. 5. In my view, the decisions cited to me have no manner of application to the present case. It was held in them that the Court would possess power, and in any case inherent power, to suitably enlarge time previously fixed by it for payment of any amount by a party in the case in which the order was made. I do not see how that proposition or the provisions in S. 148 or in S. 151 of the Code of Civil Procedure, 1908 can be applied to this case for extending the period mentioned by the corporation in its offer letter dated March 1st, 2002. Here the time was never fixed by the Court by making any order in any case. There is absolutely no scope to exercise the writ powers for enlarging the time fixed by a party while making a particular offer in connection with an existing loan agreement. Here the time was never fixed by the Court by making any order in any case. There is absolutely no scope to exercise the writ powers for enlarging the time fixed by a party while making a particular offer in connection with an existing loan agreement. Enlargement of time in such a case as this will clearly amount to compelling a party to the contract to make a fresh offer against his wish; in my view, the writ powers cannot be exercised for such a purpose. 6. As to the sale notice under challenge, it has been said that the offer of the first petitioner to settle the accounts by paying Rs. 29 lakh with interest from 2002 was rejected by the corporation on the ground that its guidelines would not permit the settlement of the offer, but the guidelines were never disclosed or produced. For this counsel refers me to the facts stated in a disposed of interlocutory application. Counsel for the corporation has said that his client was under no obligation to disclose or supply to the petitioners internal guidelines issued for guiding the officers and employees of the corporation. 7. I do not see how the sale notice can be questioned on the ground that the corporation acted unfairly or arbitrarily by rejecting the first petitioner's offer. The one time settlement offer made by the corporation had lapsed in March 2002. The petitioners, till before service of the notice under Ss. 29 and 30, did not agitate the issue in any meaningful manner. For enforcing the non- existent offer made in March 2002 by the corporation they took out this writ petition only in April 2006. On these facts, I am unable to hold that by declining to accept the first petitioner's offer to settle the loan accounts by paying Rs. 29 lakh with interest the corporation acted arbitrarily or unfairly or unreasonably. The corporation was entitled and empowered to issue the sale notice and then to publish it, since it found no reason to stop the sale process. Hence I hold that there is no merit in the writ petition. 8. Before I part with the case, I think I must say something regarding a gesture shown by the corporation to accommodate the petitioners. Hence I hold that there is no merit in the writ petition. 8. Before I part with the case, I think I must say something regarding a gesture shown by the corporation to accommodate the petitioners. Its counsel has said that it has been stated before this Court in the affidavit that the corporation has already received offer of Rs. 78 lakh towards price of the properties sought to be sold. Counsel for the corporation has said that if the petitioners pay Rs. 78 lakh at once, the corporation will not proceed with the sale. To this counsel for the petitioners has said that he is not in a position to make any effective comment. He only says that even if his clients agree to settle the loan accounts by paying Rs. 78 lakh, thena they will not be in a position to pay the amount at a stroke, and that they will need opportunity of paying the amount in instalments. He has also said that if the petitioners agree to pay the amount, then on payment of Rs. 48 lakh towards the first instalment they will need possession of the factory for running it under supervision and control of the corporation. Considering these submissions, counsel for the corporation has left the matter to the discretion of the Court for making appropriate order. 9. In view of the abovenoted situation, while I say that there is absolutely no ground to interfere with the sale notice, I dispose of the writ petition giving the following directions. If the petitioners inform the corporation in writing within a fortnight that towards full and final settlement of the loan accounts they will pay Rs. 78 lakh, and if they simultaneously pay Rs. 40 lakh and undertake to pay the balance Rs. 38 lakh within three months from the date of payment of Rs. 40 lakh, then within three days from the date of payment of Rs. 40 lakh the corporation shall hand over possession of the factory and other properties to the petitioners for running the business under supervision and control of the corporation. If within three months from the date of payment of Rs. 40 lakh, the balance Rs. 38 lakh is paid, then the corporation shall close the loan accounts recording full and final settlement of dues payable by the petitioners. 10. In case the petitioners fail to pay Rs. If within three months from the date of payment of Rs. 40 lakh, the balance Rs. 38 lakh is paid, then the corporation shall close the loan accounts recording full and final settlement of dues payable by the petitioners. 10. In case the petitioners fail to pay Rs. 40 lakh within the period, i.e. within a fortnight from today, or if they fail to pay Rs. 38 lakh within three months from the date of payment of the sum of Rs. 40 lakh, the corporation will be entitled to take possession of the properties once again and initiate sale proceedings for selling them in accordance with law. For a fortnight from today the corporation shall not take any steps in connection with sale notice published on April 18th, 2006. If the letter proposing settlement by paying Rs. 78 lakh accompanied by payment of Rs. 40 lakh towards first installment is not submitted by the petitioners within a fortnight, the corporation will be absolutely free to take all steps for sale of the properties. There shall be no order for costs in the case. 11. As a special case, I order that all parties shall act on a signed xerox copy of this order to be supplied on the usual undertakings. Order accordingly.