Judgment Ravi R. Tripathi, J.—The first Letters Patent Appeal No. 570 of 2010 is filed by the Gujarat State Financial Corporation the original respondent (hereinafter referred to as ‘the Corporation’), whereas Letters Patent Appeal No. 1585 of 2010 is filed by Mama Dev Silk Mills P. Ltd. 2. Both the parties are aggrieved by the same judgment and order dated 10.03.2010 passed in Special Civil Application No. 3728 of 2002 by the learned Single Judge of this Court for different reasons. Letters Patent Appeal No. 570 of 2010 filed by the GSFC is mainly against the directions contained in the final judgment and order of refunding the amount paid by the original petitioner (appellant of Letters Patent Appeal No. 1585 of 2010, hereinafter referred to as ‘the Borrower’) after the order passed by learned Single Judge of this Court dated 04.11.2004 before putting the property of the Borrower to auction. 3. So far as Letters Patent Appeal No. 1585 of 2010 of the Borrower is concerned, it is the case that the learned Single Judge has not granted reliefs, as prayed for, i.e. to direct the Borrower to pay the remaining amount and upon payment of remaining amount, to direct the GSFC to hand over the possession of the property to the Borrower. 4.1 Learned advocate Mr. R.D. Dave for the GSFC invited attention of this Court to Para 9 onwards of the judgment and order of learned Single Judge. The same is reproduced as under for perusal: “9. If the facts of the present case are examined in light of the aforesaid, it is an admitted position that the petitioner has paid the amount of Rs. 2,95,62,430/ pursuant to the interim order passed by this Court. It is also true that pursuant to the interim order passed by this Court, the Corporation had to hand over the possession, and thereafter, as the petitioner did not deposit the amount as per the interim order well in time, the Corporation has applied the seal over the property and the Corporation thereafter was also permitted to proceed in accordance with law for recovery, but at that stage also, the amount of Rs. 2,96,55,842/is ordered to be kept in a separate account and not be to appropriated and thereafter before the Corporation proceeds for sale of the property, additional amount is also deposited by the petitioner with the Corporation. 10. 2,96,55,842/is ordered to be kept in a separate account and not be to appropriated and thereafter before the Corporation proceeds for sale of the property, additional amount is also deposited by the petitioner with the Corporation. 10. Under these circumstances, if ultimately, at the final order, the respondent Corporation is to be left with liberty to sell the property, primary security as well as collateral security, by resorting to the proceedings in accordance with law, the equity would demand that the respondent Corporation would be required to refund the amount already deposited by the petitioner pursuant to the interim order passed by this Court. The attempt on the part of the respondent Corporation to contend for the appropriation of the amount already deposited by the petitioner and also to permit the respondent Corporation to sell the property of primary security as well as collateral security by dismissal of the petition on a mere ground that this Court has no power to alter the terms and conditions of OTS in exercise of the power under Article 226 of the Constitution of India can hardly be countenanced. If this Court is not to grant the relief to the parties to the proceedings on the ground that the same is not falling within the purview of the exercise of the power under Article 226 of the Constitution of India, it may do so, but while doing so, this Court would balance the equity and would leave no room for allowing the respondent Corporation to earn any undue benefits of the interim order passed in the present proceedings. If the respondent Corporation is to maintain its rights for enforcement of the recovery under Section 29 of the Act against the primary security as well as collateral security, it may be permissible, but the amount so deposited by the petitioner pursuant to the interim order will be required to be refunded back by the respondent Corporation to the petitioner before the action is taken for sale of the unit being primary security and collateral security in accordance with law. 11. The attempt to permit appropriation of the amount already deposited by the petitioner pursuant to the interim order and also to retain the unit for recovery of the balance amount cannot be countenanced. 11. The attempt to permit appropriation of the amount already deposited by the petitioner pursuant to the interim order and also to retain the unit for recovery of the balance amount cannot be countenanced. If the respondent Corporation is to stand on its right to recover the outstanding amount as per law, it will be required for the Corporation to refund the amount to the petitioner, which is deposited by him pursuant to the interim order and thereafter only to proceed for recovery in accordance with law by sale of the unit or otherwise. 12. Had it been a case where both the parties to the proceedings were on agreement for alteration of the conditions of OTS for acceptance of the amount of Rs. 2.69 crore with interest at the rate of 11% p.a, either by including the period during which the possession was to be handed over and was not handed over or by excluding the said period, the matter shall stand on a different footing. It appears that the Corporation as per the declaration made and recorded hereinabove is ready to accept the amount of Rs. 2.69 crore as OTS, but is insisting for the charging of interest at the rate of 11% per annum from the date of OTS till the amount is paid on a reducing balance method, whereas the petitioner is not agreeable to pay the interest at the rate of 11% per annum from the date of OTS or is not agreeable to pay the interest at the rate of 11% p.a., for the period during which the possession was ordered to be handed over and was not handed over by the Corporation pursuant to the interim order, therefore, it is not possible for this Court to record the settlement and to pass the order based on the same.” (emphasis supplied). 5. The above quoted paragraphs lead to the controversy involved in the Letters Patent Appeals. Learned senior advocate for the appellant Corporation vehemently submitted that it is true that the amount is paid by the petitioner pursuant to the order passed by the Court (interim orders of the Court). 5. The above quoted paragraphs lead to the controversy involved in the Letters Patent Appeals. Learned senior advocate for the appellant Corporation vehemently submitted that it is true that the amount is paid by the petitioner pursuant to the order passed by the Court (interim orders of the Court). It is also not in dispute that the appellant was indebted to the Corporation and therefore, learned Single Judge ought not to have passed the order directing refund of the amount paid by the petitioner (interim orders of the Court) before the Corporation can resort to proceed for recovery of the amount under Section 29 of the Act. 6. Learned senior advocate for the appellant emphatically relied upon a decision of a Division Bench of this Court in Letters Patent Appeal No. 670 of 2010 in Special Civil Application No. 9089 of 2009 (Coram : Honourable the Chief Justice Mr. S.J. Mukhopadhaya, as he then was, and Honourable Mr. Justice K.M. Thakker) on 12.01.2011. Learned senior advocate for the Corporation submitted that though it is a short judgment, but is squarely applicable to the facts of the present case. According to the learned senior advocate for the Corporation, the facts of the case are not only similar but almost identical and therefore, this Court should interfere with the order passed by the learned Single Judge and allow the Appeal filed by the Corporation, by dismissing the Appeal filed by the Borrower. 7. (I) Learned senior advocate for the Corporation could not satisfy this Court that every amount paid in this case was not pursuant to the order of the Court. II. Learned senior advocate for the Corporation is also not able to point out that there was a specific order in that case that the amount paid by the Borrower to the Creditor will not be appropriated towards the date and will be kept in separate account. III. Learned senior advocate for the Corporation is not able to satisfy this Court that in that case also the Creditor was asked to hand over the possession of the property in question, but the same was not handed over for a period of 13 months as it happened in this case. IV. In the case on hand, the amount of interest payable to the Corporation by the Borrower was paid and that is on record. IV. In the case on hand, the amount of interest payable to the Corporation by the Borrower was paid and that is on record. But at the last minute as an afterthought, the Corporation refused to go ahead with OTS (‘One time Settlement’) which according to the Corporation is modified by the Court by its order. 8. In absence of satisfaction on any of the aforesaid aspect, this Court is of the opinion that the said decision is having no application to the facts of the present case and does not help the Corporation. 9. The matter was heard yesterday i.e. 5th December 2013 and at the end of the day, the matter was kept back to enable learned senior advocate for the Corporation to take instructions from the appellant GSFC to make a statement that the Corporation is ready and willing to go ahead with the OTS which is stated to have been modified by the Court on making payment of remaining amount of interest with 11% interest per annum thereon for the period of which, according to the learned senior advocate for the Corporation was of 4 years and according to the learned senior advocate for the Borrower, was of 2 years. 10. Today, when the matter was called out, learned senior advocate for the Borrower stated that as per the instructions of his client, the amount of interest is already paid, but as he had agreed to pay the amount of Rs. 16 lakhs with interest @ 11% per annum for the period of 2 years, he has asked his client to honour that statement made yesterday. As against that, learned senior advocate for the Corporation made available calculation showing the final amount payable by the Borrower to the Corporation @ 16% interest per annum (as the amount of interest agreed between the parties at the time of advancing the loan was 16% per annum) which was chargeable in the OTS offered by the Corporation, which according to the Corporation, is modified by learned Single Judge by order dated 04.11.2004 passed in Special Civil Application No. 3728 of 2002 (preferred by the appellant of Letters Patent Appeal No. 1585 of 2010) and subsequent orders. The other one is the calculation showing the interest payable @11% per annum. The other one is the calculation showing the interest payable @11% per annum. Interestingly, the case of the GSFC is that even after appropriating the amount paid by the Borrower under the orders of this Court, the Borrower will be required to pay an amount of Rs. 8 Crores approximately. Under the OTS offered by the Corporation, the Borrower is under an obligation to pay an amount of Rs. 2 Crores approximately. But, if the Borrower is to pay as per OTS modified by the Court, an amount of Rs. 91 lakhs is payable. Yesterday, when the matter was heard and kept for today, at the closing hour, the discussion was that the amount of Rs. 16 lakhs plus 4 years interest @ 11% per annum is payable by the Borrower to the Corporation, which is now shown to be Rs. 91 lakhs approximately. 11. Be that as it may, this Court is not required to go into that aspect because this Court is to consider whether directions issued by the learned Single Judge for refunding the amount paid by the Borrower under the orders of the Court before the Corporation as permitted to undertake exercise of recovering the amount due, under Section 29 of the Act, is valid or not. On careful consideration the facts of the case, more particularly, a detailed judgment running into 40 pages wherein the learned Single Judge of this Court has taken the pains of incorporating every specific order passed in the matter, including that of various Civil Applications filed from time to time like Civil Application No. 11702 of 2005 in Special Civil Application No. 3728 of 2002 filed by the Corporation, wherein an order was passed on 09.12.2005. The said Civil Application No. 11702 of 2005 was disposed of by order dated 31.03.2006. Civil Application No. 11645 of 2005 preferred by the petitioner was disposed of by order dated 31.03.2006. Civil Application No. 11957 of 2007 filed by the Corporation was disposed of by order dated 23.07.2008. Another Civil Application No. 11957 of 2007 was preferred by the Corporation wherein order dated 22.1.2009 was passed. The Corporation also preferred Civil Application No. 1064 of 2009 in Special Application No. 3728 of 2002 wherein order dated 3.12.2009 was passed. Subsequently, Civil Application No. 13131 of 2009 was preferred by the petitioner. Another Civil Application No. 11957 of 2007 was preferred by the Corporation wherein order dated 22.1.2009 was passed. The Corporation also preferred Civil Application No. 1064 of 2009 in Special Application No. 3728 of 2002 wherein order dated 3.12.2009 was passed. Subsequently, Civil Application No. 13131 of 2009 was preferred by the petitioner. It is after considering all relevant aspects of the matter, the learned Single Judge was pleased to issue certain directions in his judgment which are under challenge in the Letters Patent Appeal. 12. Besides, a very important fact was pointed out by learned senior advocate for the Corporation that for the reason which is going to be stated hereafter the Borrower does not deserve any indulgence from this Court and his Appeal be dismissed and relief granted in his favour by the learned Single Judge will also be withdrawn. That important fact is, that under the order of the Court the possession was to be handed over by the Corporation pursuant to order dated 04.11.2004 on payment of 10%, though the amount was paid the possession was handed over only on 21.12.2005. But thereafter when the Corporation applied the seals to the property on 04.02.2009 due to nonpayment of the stipulated amount, it was noticed that noticeable stock of machineries was removed from the premises. In this connection, learned senior advocate for the Corporation invited attention of this Court to the affidavit filed by Dinesh Purshottam Amin, Senior Officer (Field) of the Corporation, affirmed on 29.08.2012. Para 5 of the said affidavit reads as under: “5. Surprisingly when the possession was taken from the opponent on 4.2.2009 of machineries which were mentioned in earlier panchnama drawn on 21.12.2005 in presence of Court Commissioner have been missing and removed illegally and fraudulently by the opponent. Thus 25 machineries which were mentioned in the panchnama dated 21.12.2005 of which possession was given to the opponent have been illegally removed by committing breach of trust and also committed fraud with the Hon’ble Court. The same machineries are security for the payment of dues upon which charge has been created by the opponent by way of hypothecation of machinery. Security has been disposed of which amounts to criminal offence punishable under Sections 406, 420 and 421 of the IPC along with other provisions of IPC for committing breach of trust. The same machineries are security for the payment of dues upon which charge has been created by the opponent by way of hypothecation of machinery. Security has been disposed of which amounts to criminal offence punishable under Sections 406, 420 and 421 of the IPC along with other provisions of IPC for committing breach of trust. This Hon’ble Court while passing order to handover the possession expected and opponents to maintain and preserve the plant and machinery and to pay the remaining outstanding dues. However, the opponent has committed breach of the trust reposed upon the opponent by this Hon’ble Court and played mischief by taking away and disposing of the machineries. Under the circumstances, the respondent is guilty of committing fraud with the appellant as well as with this Hon’ble Court for which necessary action may be taken by this Hon’ble Court against the responsible person. I state that GSFC has already filed criminal complaint being Criminal Case No. 805 of 2012 before Ld. Judicial Magistrate First Class at Surat wherein, Ld. Magistrate has passed an order of Inquiry under Section 202 of Cr.P. Code. A copy of complaint is annexed hereto and marked as “ANNEXURE-A/3” to this affidavit.” 13. Though the panchnama was drawn on 04.02.2009, no action was taken. The complaint is made to this Court for the first time in the affidavit filed on 29.8.2012. A criminal complaint was filed in the year 2012. What a happy situation of working of mighty financial corporation of the State. Be that as it may, this is placed on record only to bring an important aspect of the matter on record that wherever possible, the officers of Government and Semi Government Institutions are always ready to oblige the person who in turn obliges them. Otherwise, if removal of machinery had come to the knowledge of the Corporation on 04/02/2009, the first action/reaction/response expected was to make a complaint to the High Court about such removal of machineries. 14. What is more painful is that even till today, no officer of the Corporation deemed it proper to take necessary steps against the person who defaulted in not taking necessary actions at the relevant time i.e. drawing of panchnama on 04.02.2009. 15. 14. What is more painful is that even till today, no officer of the Corporation deemed it proper to take necessary steps against the person who defaulted in not taking necessary actions at the relevant time i.e. drawing of panchnama on 04.02.2009. 15. Coming back to the question which is required to be considered by this Court in this Appeal is whether the Corporation should be allowed to proceed with the recovery proceedings under Section 29 of Act without refunding the amount which is paid by the Borrower under the orders of the Court. 16. In the considered opinion of this Court, it is trite law that one cannot be allowed to take undue advantage of the orders of the Court and therefore, this Court finds no error in the order passed by the learned Single Judge and therefore, Appeal deserves to be dismissed. 17.1 At this juncture, learned senior advocate for the Borrower invited attention of this Court to the decision of the Apex Court in the matter of State of Bank of India vs. Vijay Kumar ( AIR 2007 SC 1689 ). Learned senior advocate for the Borrower invited attention of this Court to the Head Note which is as under: “Recovery of Debts Due to Banks and Financial Institutions Act (51 of 1993).—Sec. 27 – Constitution of India, Art. 136 – Recovery of Bank debt – Settlement between appellant Bank and respondent borrower – Agreement also containing default clause – DRT passing order on basis of agreement – Respondent had agreed to repay amount of loan in equal installments before stipulated time – Default in payment by respondent – First installment was paid by him in time – Taking note of all relevant factors and bona fides of respondent, High Court held that default by respondent was due to genuine difficulties and that entire amount was paid by him with interest charged by appellant for defaulted period – At no point of time, appellant indicated that settlement failed because of failure to stick to time Schedule – No interference in appeal.” 17.2 Learned senior advocate for the Borrower also invited attention of this Court to Paragraph Nos. 7, 8 and 9 of the decision in State of Bank of India (Supra) of the Apex Court which are as under: “7. 7, 8 and 9 of the decision in State of Bank of India (Supra) of the Apex Court which are as under: “7. Learned counsel for the respondent submitted that High Court took note of all the relevant factors, the bona fides of the respondent and even had directed charging of interest which in fact has been charged by the appellant bank and has been paid. Normally, when there is failure of the terms of settlement the default clause, if provided, operates. Therefore, in the peculiar features appellant-bank agreed to settle the claim taking into account various factors. It is true that the High Court has erroneously recorded that Rs. 2,00,000/has been paid within the stipulated time. The details of the payment are as follows: Sr. No. Date of Payment Amount Mode of Payment 1. 28.12.2003 Rs. 90,000 Cash deposited with the Respondent bank 2. ‘2.1.04 Rs. 20,000 Cash deposited with the Respondent bank 3. ‘5.1.04 Rs. 10,000 Cash deposited with the Respondent bank 4. ’25.4.04 Rs. 3,80,000 Cash deposited with the Respondent bank 5. ’12.7.04 Rs. 5,00,000 Vide bank draft deposited with the Recovery Officer. Total Rs. 10,00,000 “8. Additionally, we find that the respondent had paid Rs. 45,000/- as interest for the defaulted period. Interestingly, pursuant to the direction of the High Court the appellantbank had charged interest within third party for selling the property but the payment in respect of the sale was to be made directly to the bank.” “9. It is noted that Bank at no point of time before the final payment was made appear to have indicated that settlement failed because of failure to stick to the time schedule.” 18. Finally, it will be necessary to put on record that the Corporation has not challenged any orders passed in the proceedings right from the one which was passed on 04.11.2004. In that view of the matter, learned Single Judge is right in recording that, the contention which is raised in the Appeals that “this Court has no power to alter the terms and conditions of OTS in exercise of the power under Article 226 of the Constitution of India” cannot be entertained by the learned Single Judge. 19. In that view of the matter, learned Single Judge is right in recording that, the contention which is raised in the Appeals that “this Court has no power to alter the terms and conditions of OTS in exercise of the power under Article 226 of the Constitution of India” cannot be entertained by the learned Single Judge. 19. Entertaining the Appeal will amount to allow premium on the inaction on the part of the appellant Corporation as it did not challenge not only order dated 04.11.2004 but subsequent orders also and made the Borrower to go on making payment under the orders of the Court. 20. In the result, Letters Patent Appeal No. 570 of 2010 is dismissed. 21. So far as Letters Patent Appeal No. 1585 of 2010 is concerned, the Court cannot entertain the said Appeal also, for the reason that the Borrower must abide by the orders of the Court and must make the payment, if remained unpaid under the orders of the Court, to get the relief of return of the property in question. Letters Patent Appeal No. 1585 of 2010 is also dismissed. 22. Learned senior advocate for the Borrower submitted that even as per the calculation submitted by the Corporation, the total amount of Rs. 3,12,79,243/- is paid by the Borrower to the Corporation, which is mentioned to be Rs. 2,95,62,430 in Para 9 of the judgment and order of the learned Single Judge. 23. Learned senior advocate for the Borrower submitted that though the Borrower has paid the amount as per calculation of the Corporation qua principal as well as interest, at the final hearing stage the Corporation is coming out with a case that even as per modified OTS by the Court, a sum of Rs. 91 lakhs is required to be recovered from the Borrower. 24. At this stage, learned senior advocate for the Borrower is expressing an apprehension that the Corporation may not act at all in the matter and will allow the matter to remain pending, which will result in increase of interest to a higher amount. 25. Apprehension is justified and therefore, the Corporation is directed to take a decision in the matter either to refund the amount and proceed with the recovery under Section 29 of the Act or to return the possession of property.