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2021 DIGILAW 163 (ORI)

Balaji Ice & Cold Storage Pvt. Ltd. v. State Of Odisha

2021-03-31

B.P.ROUTRAY

body2021
ORDER 1. This petition points to the sad state of affairs of maintenance of accounts by some of the State public finance corporations, in this case, the Odisha State Finance Corporation (OSFC). 2. The background facts are that the Petitioner was on 18th March 1989, sanctioned a loan of Rs.57,75,000/- by the OSFC. Interest was to be charged at the rate of 13.5% per annum and the entire amount was to be repaid within ten years with a three year moratorium period. Availing such loan, the Petitioner set up a cold storage unit at a total cost of Rs.90,60,000/-. 3. The Petitioner claims to have paid by 2001, more than Rs.73,00,000/- towards principal and interest. According to the Petitioner, after reconciliation of the loan ledger account in 2001, the OSFC through its Branch Manager, Sambalpur/Bargarh Branch on 18th October 2011, demanded a sum of Rs.29,42,764/-. According to the Petitioner, this was unjustified because on 22nd April 2002, a letter had been issued by the OSFC, Bargarh Branch to the Petitioner that 'there was no outstanding in its principal and interest account as per the loan ledger.' 4. The Petitioner stated to have made an application on 4th November 2011, for return of the mortgaged documents. However, the OSFC on 9th December 2011, issued a recall notice under Section 30 of the State Finance Corporation Act (SFC Act) stating that the mortgaged assets of the Petitioner would be taken over if it defaulted in making payment of the demanded sum. 5. Challenging the aforementioned notices dated 18th October 2011 and 9th December 2011, the Petitioner filed the present writ petition in which notice was issued on 9th February 2012, and an interim order was passed directing that no coercive action would be taken in relation to the seizure of the assets of the Petitioner. 6. A counter affidavit was filed by the OSFC more than eight years later on 25th November 2020 seeking to defend the demand notice dated 18th October 2011 and the recall notice dated 9th December 2011. It is stated in the counter affidavit that on 3rd February 2012, prior to the interim order passed by this Court, OSFC took over possession of the Petitioner's industrial unit under Section 29 of the SFC Act. It is stated in the counter affidavit that on 3rd February 2012, prior to the interim order passed by this Court, OSFC took over possession of the Petitioner's industrial unit under Section 29 of the SFC Act. According to the OSFC, the Petitioner had submitted a compromise settlement proposal for release of the unit on payment of the outstanding principal amount against which the Petitioner paid Rs.1,00,000/- on 11th December, 2014. Subsequently, it was decided by the OSFC to release the industrial unit of the Petitioner if the Petitioner made a further payment of Rs.2,00,000/-. This was communicated to the Petitioner on 19th January, 2016. 7. In paragraph 17 of the reply affidavit, OSFC accepts that the Petitioner has paid it Rs.124.68lakhs. While not denying that it issued a letter dated 22nd April 2002 to the Petitioner indicating that there was Nil balance in the loan ledger, OSFC has tried to project that this was 'on the insistence of the Petitioner Company'. In the same breath, it is tried to be projected that OSFC 'has never issued any No Dues Certificate (NDC) to the Petitioner Company as claimed by the Petitioner'. 8. Strangely, the subject matter of the letter dated 22nd April 2002 of the OSFC states 'issue of NDC in favour of the M/s. Balaji Ice Cold Storage Pvt. Ltd., Bargarh (provisionally)'. There is in fact no denial by OSFC in its reply that it has indeed issued an NDC on 22nd April 2002. Also nowhere in the reply affidavit is there an averment that such NDC was issued by mistake. Again, nowhere in the reply affidavit is it explained by the OSFC how the impugned notice under Section 30 of the SFC Act was issued to the Petitioner on 9th December, 2011 calculating the amount due as Rs.29,42,764/- when in fact an NDC was issued in favour of the Petitioner more than nine years earlier. The basis of calculation of such figure is not indicated. 9. It appears to this Court that the OSFC is acting unreasonably in raising a fresh demand more than nine years after issuing an NDC, without indicating the basis for such demand and while at the same time, not terming the NDC already issued as a mistake. The basis of calculation of such figure is not indicated. 9. It appears to this Court that the OSFC is acting unreasonably in raising a fresh demand more than nine years after issuing an NDC, without indicating the basis for such demand and while at the same time, not terming the NDC already issued as a mistake. This has also to be viewed in the background of the fact that the Petitioner has admittedly paid the OSFC a sum of Rs.124.68lakhs as repayment of principal and interest towards the sanctioned loan amount of Rs. 57.75 lakhs. The action of the OSFC in retaining till date the property documents as well as possession of the Petitioner's industrial unit, despite the issuance of the NDC nearly two decades ago, appears to be equally unreasonable. 10. Learned counsel for the OSFC sought to suggest that since the Petitioner had come forward to pay a further sum of Rs.1,00,000/- on 11th December 2014, it should be construed as an 'admission' by the Petitioner that the earlier NDC issued by the OSFC on 22nd April 2002, was not valid. This argument deserves to be rejected for the reason that with the OSFC holding on to the property documents and taking over possession of the unit in 2012 despite issuing the NDC in April 2002, the Petitioner was plainly helpless and felt constrained to make the above payment of Rs.1,00,000/- in order to secure release of the documents and for restoration of possession of its unit. On the other hand, OSFC has much explaining to do for the averment in paragraph 11 of its reply affidavit that the OSFC had decided to release the industrial unit, if the Petitioner paid a further sum of Rs.2,00,000/-. If indeed the amount due as on that date according to the OSFC was Rs.29,42,764/- or more, why would it agree to release the unit on payment of merely Rs.2,00,000/-.All this points to the poor state of affairs in OSFC maintaining its loan ledger account. Strangely, after issuing an NDC way back on 22nd April 2002, it suddenly finds in 2011 that nearly Rs.30,00,000/- is due from the Petitioner. If as admitted by OSFC itself, the Petitioner has paid it Rs.124.68lakhs towards principal and interest as against the sanctioned loan amount of Rs. 57.75 lakhs, it was incumbent on the OSFC to explain the basis of its calculation. If as admitted by OSFC itself, the Petitioner has paid it Rs.124.68lakhs towards principal and interest as against the sanctioned loan amount of Rs. 57.75 lakhs, it was incumbent on the OSFC to explain the basis of its calculation. With the OSFC failing to explain how it has arrived at the above figure in 2011, on the basis of the loan ledger account entries, despite issuing an NDC nine years earlier, the inevitable conclusion is that the demand raised is arbitrary and wholly unsustainable in law. 11. Accordingly, the impugned notices dated 9th December and 18th October, 2011 are hereby quashed. A direction is issued to the OSFC to restore the possession of the Petitioner's industrial unit to the Petitioner through its authorized representative not later than four weeks from today. 12. The petition is allowed in the above terms. No orders as to costs. An urgent certified copy of this order be issued as per rules.