IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F . A .O . N o . 1 2 5 o f 1 9 9 0 Date of Decision : December 04, 2008 Punjab Financial Corporation ....Appellant Versus M/s Sepal Hotels (Pvt) Ltd. .....Respondent CORAM : HON’BLE MR. JUSTICE T.P.S. MANN Present : Mr. G.S. Gill, Advocate for the appellant. Mr. Sarjit Singh, Senior Advocate with Mr. Pankaj Gupta, Advocate for the respondent. T.P.S. MANN, J. Application filed by the appellant-Corporation under Section 31 of the State Financial Corporation Act, 1951 (for short 'the Act') against the respondent for the recovery of Rs.3,34,717.76p. along with compound interest at the rate of 15½% per annum from 15.6.1987, besides miscellaneous expenses and incidental charges was disposed of by learned Additional District Judge, Bathinda vide order dated 22.11.1989 as it could not be ascertained as to how much amount was payable by the respondent to the Corporation. However, the Corporation was directed to calculate the amount payable by the respondent after giving rebate of 2% per annum in interest on the loan advanced for setting up industry in centrally declared backward area of Punjab. The Corporation was further directed to give rebate of 1% per annum in F.A.O. No. 125 of 1990 - 2 - interest on the loan refinanced by the Industrial Development Bank of India (I.D.B.I.) from the date on which it was refinanced till it remained refinanced. The Corporation was also directed to calculate the penal interest payable by the respondent on the defaulted installment plus interest only till the default continued and to submit the same in the Court so that further recovery may be effected from the respondent. The respondent was, however, restrained from transferring or removing the machinery, plant and equipment from the premises till the loan amount was paid to the appellant-Corporation. Aggrieved of the same, the appellant-Corporation filed the present appeal. In its application under Section 31 of the Act, it was stated by the appellant-Corporation that a loan of Rs.12,00,000/- was sanctioned to the respondent, who executed a mortgage deed dated 18.1.1977. Out of the sanctioned loan, a sum of Rs.11,41,000/- was lent, advanced and paid to the respondent while the balance unavailed loan of Rs.59,000/- was cancelled as the respondent committed irregularities. On the application of the respondent, the Corporation also sanctioned a loan of Rs.1,98,000/- to the respondent on the terms and conditions and on the securities mentioned in the mortgage deed dated 8.5.1979. The respondent committed the default in payment of installment of interest due from 15.12.1984 onwards and installments of principal from 1.1.1984 onwards. Therefore, the Corporation was entitled to recover a sum of Rs.3,34,717.76p. from the respondent, besides entitled to recover further interest at the rate of 15½% per annum w.e.f. 15.6.1987 along with F.A.O. No. 125 of 1990 - 3 - miscellaneous expenses and incidental charges as per the mortgage deeds. While contesting the application, the respondent pleaded that it was the appellant-Corporation, which was guilty of committing breach of the contract by not extending fiscal incentives due to the respondent under the declared policy of the Union of India, State of Punjab and the I.D.B.I., therefore, the Corporation was estopped from filing the application. The demands of the Corporation were beyond the mortgage deeds and the provisions of the Act. The Corporation had arbitrarily charged the compound and the penal rate of interest, although it was not entitled to do the same. A civil suit for rendition of accounts was filed by the respondent against the Corporation, which was pending. The respondent wanted to set up a three star Hotel at Bathinda and in this connection it had approached the Corporation for grant of a loan of Rs.18,00,000/- for the construction of the hotel building and purchase of machinery. However, the Corporation advanced a loan of Rs.12,00,000/-. The respondent was prompted by the various fiscal incentives and rebates in interest offered by the Union of India, State of Punjab, I.D.B.I. etc. for setting up the hotel. Out of the loan of Rs.12,00,000/-, which was sanctioned, only Rs.11,41,000/- was disbursed by the Corporation to the respondent. The respondent was not liable to pay any commitment interest as the loan in question stood adjusted. Despite the same, the Corporation did not return the mortgage deeds duly discharged although repeated requests in that regard were made. The entire loan amount advanced by the Corporation to the respondent was refinanced by the F.A.O. No. 125 of 1990 - 4 - I.D.B.I. w.e.f. 27.10.1997 on simple interest at the rate of 6% per annum from the date of refinance. The Corporation could, at the most, claim interest at the rate of 3½% from the respondent in excess of 6% per annum, i.e. 9½% per annum. Even the said rate of 9½% per annum was liable to further decrease after considering the rebate in interest and fiscal incentives offered by the Union of India in centrally declared backward districts of Punjab. The Corporation was bound to comply with the industrial policy of the Centre and the State as per which a reduction of 2% interest should have been allowed by the Corporation, besides a rebate of 1% in interest in the event of the project being refinanced by the I.D.B.I. No statement of account had been prepared by the competent authority and the rate of interest charged was excessive. The Corporation also illegally charged interest amounting to Rs.2,76,584.50p. from the respondent at the rate of 12½% and 15½% per annum on the defaulted loan amount as well as on the installments which had yet not become due. Accordingly, the respondent prayed that the Corporation be directed to revise the loan amount by deleting the entries which were not recoverable from the respondent by giving credit to the respondent of the excess payment received by the Corporation for the period from 15.6.1979 to 14.6.1981 after calculating interest at the rate of 6% per annum and allowing 2% incentive for setting up the industrial concern in the centrally declared backward district of Bathinda and rebate of 1% in interest as the loan was refinanced by the I.D.B.I. as per the policy of the Punjab government. F.A.O. No. 125 of 1990 - 5 - After going through the pleadings of the parties, learned lower Court framed the following issues :- 1. Whether the application has been filed through a competent person ? If not, its effect ? OPA. 2. Whether sum of Rs.3,34,717.76p. is due against the respondent as pleaded in the application ? OPA. 3. Whether respondents are liable to pay future compound interest at the rate of 15% per annum on the amount mentioned in No. 2 from 15.6.1987? OPA. 4. Whether respondents are liable to Misc. expenses, incidental charges, as pleaded ? If so, to what amount ? OPA. 5. Whether respondents are not liable to pay any commitment interest as pleaded in para No. 5 (b) of the written statement on facts ? OPR. 6. Whether respondents are entitled to rebate in interest by 1% as pleaded in para No. 8 of the written statement on facts ? OPR. 7. Whether respondents are entitled to reduction of 2% in interest rate again pleaded in para No. 8 of the written statement on facts ? OPR. 8. Whether respondents have made excess payment to the tune of Rs.60,000/- which now swells to more than Rs.1,25,000/- after adding F.A.O. No. 125 of 1990 - 6 - compound interest as pleaded in para 9(b) of the written statement on facts and if so, they are entitled to adjust the same from the outstanding amount due to them ? OPR. 9. Relief. On the basis of evidence, learned lower Court held that the respondent had set up the hotel in a centrally declared backward district of Punjab and so it was entitled to receive 2% reduction in interest on the loan received from the Corporation. The respondent was also entitled to 1% rebate in interest from the date when the loan of Corporation was refinanced by the I.D.B.I. As the Corporation did not produce the record as to on which date the respondent committed default in payment of the installment of the interest, it could not be held as to how much amount the Corporation was entitled to recover from the respondent. The Corporation was, accordingly, directed to calculate the amount by giving rebate of 2% per annum on account of setting up the hotel in a centrally declared backward district of Punjab and 1% rebate in interest on account of refinancing of the loan by the I.D.B.I.. However, the respondent was held liable to pay miscellaneous expenses/incidental charges as agreed in the mortgage deed Ex. A5, besides payment of commitment interest. At the same time, the Corporation was held entitled to charge interest at the rate exceeding the stipulated rate by 3% on the amount regarding which default had been committed plus the interest which was due as on that date. As the Corporation had not given notice under Section 30 of the F.A.O. No. 125 of 1990 - 7 - Act to the respondent to pay the entire amount, the remaining amount had not become payable immediately. The Corporation had charged higher rate of interest not on the defaulted amount but on the entire balance loan which had not become due as per account statement Ex.A7 which it could not do. The Corporation could only charge higher interest as agreed on the defaulted amount plus interest on that amount. Accordingly, directions were issued to the Corporation to calculate the amount payable by the respondent after giving rebate of 2% per annum in interest and another rebate of 1% per annum as mentioned above, besides calculating the penal interest payable by the respondent on the defaulted installment plus interest till the default was committed and submit the same in the Court for effecting its recovery from the respondent. The main grouse of the appellant in the present appeal is that it could insist upon the rate of interest on the amount strictly as per terms of the mortgage deed executed between the parties. The respondent could not be given any rebate of 2% and 1% as claimed by the respondent. It is not in dispute that Bathinda district had already been a centrally declared backward district of Punjab. In such a situation, the entrepreneur setting up an industrial unit in Bathinda district was entitled to rebate of 2% in interest on the loan sanctioned by the Corporation. Besides, as the loan had been refinanced by the I.D.B.I, in such a situation, the entrepreneur was also entitled to subsidy of 1% of the interest amount as per the policy of the State of Punjab. 1% subsidy in F.A.O. No. 125 of 1990 - 8 - interest was receivable by the Corporation from the government in the loan account of the respondent. Accordingly, the Corporation was required to give both the aforementioned rebates to the respondent and could not insist upon the repayment of the loan as per the terms of the mortgage deed. As regards the claim of the Corporation to charge interest at the rate exceeding stipulated rate by 3%, learned lower Court held that the Corporation was entitled to the same as the default had been committed by the respondent in repayment of the loan amount. However, as the Corporation did not give any notice under Section 30 of the Act, it was not entitled to insist for immediate payment of the remaining amount of loan and, that too, by charging higher rate of interest on the entire balance loan amount, which had not become due. Higher rate of interest could only be permitted on the defaulted amount and the same has already been granted to the Corporation by the learned lower Court. Another claim of the Corporation was regarding the payment of miscellaneous expenses and incidental charges by the respondent to the Corporation which had been incurred by the latter in the course of disbursement of loan and so also the commitment interest. While relying upon the mortgage deed Ex. A5 and the admission of the respondent in para 5(b) of its written statement, learned lower Court held the Corporation entitled to charge all the three items from the respondent. Learned counsel for the appellant submitted that Section 31 of the Act enabled the Corporation to enforce its claims and in such a F.A.O. No. 125 of 1990 - 9 - situation relief claimed by the Corporation had to be granted as such. Learned lower Court was not competent to investigate the claim of the Corporation by resorting to the provisions contained in Section 34 of the Code of Civil Procedure. Section 29 of the Act deals with the rights of the financial Corporation set up under Section 3 of the Act in the event of default in payment of loans or advances or installments thereof by any industrial concern. Section 30 then empowers the Corporation to require any industrial concern to discharge forthwith, in full, its liability to the Corporation. Section 31 contains special provisions for enforcement of claims by the Corporation. Section 32 of the Act deals with procedure and powers of District Judge while dealing with the applications made under Section 31 of the Act. Section 32 provides as follows :- “32. Procedure of District Judge in respect of applications under S.31 – (1) When the application is for the reliefs mentioned in clauses (a) and (c) of sub-Section (1) of Section 31, the District Judge shall pass an ad interim order attaching the security, or so much of the property of the industrial concern as would on being sold realise in his estimate an amount equivalent in value of the outstanding liability of the industrial concern to the Financial Corporation, together with the costs of the proceedings taken under Section 31 with or without an ad interim injunction restraining the industrial concern from transferring or removing its machinery, plant or F.A.O. No. 125 of 1990 - 1 0 - equipment. (1-A) When the application is for the relief mentioned in clause (aa) of sub-Section (1) of Section 31, the District Judge shall issue a notice calling upon the surety to show cause on a date to be specified in the notice why his liability should not be enforced. (2) When the application is for the relief mentioned in clause (b) of sub-Section(1) of Section 31, the District Judge shall grant an ad interim injunction restraining the industrial concern from transferring or removing its machinery, plant or equipment and issue a notice calling upon the industrial concern to show cause, on a date to be specified in the notice, why the management of the industrial concern should not be transferred to the Financial Corporation. (3) Before passing any order under sub-Section (1) or sub-Section(2) or issuing a notice under sub- Section (1-A), the District Judge may, if he thinks fit, examine the officer making the application. (4) At the same time as he passes an order under sub-Section(1), the District Judge shall issue to the industrial concern or to the owner of the security attached a notice accompanied by copies of the order, the application and the evidence, if any, recorded by him calling upon it or him to show cause on a date to be specified in the notice why the ad interim order of attachment should not be made absolute or the injunction confirmed. F.A.O. No. 125 of 1990 - 1 1 - (4-A) If no cause is shown on or before the date specified in the notice under sub-Section (1-A), the District Judge shall forthwith order the enforcement of the liability of the surety. (5) If no cause is shown on or before the date specified in the notice under sub-Sections (2) and (4), the District Judge shall forthwith make the ad interim order absolute and direct the sale of the attached property or transfer the management of the industrial concern to the Financial Corporation or confirm the injunction. (6) If cause is shown, the District Judge shall proceed to investigate the claim of the Financial Corporation in accordance with the provisions contained in the Code of Civil Procedure, 1908 (5 of 1908), in so far as such provisions may be applied thereto. xx xx xx xx” A perusal of Section 32 of the Act would reveal that while dealing with the application of the Corporation for the reliefs mentioned in clauses (a) and (c) of Section 31(1), the District Judge is required to issue notice to the owner of the industrial concern to show cause as to why the proceedings be not conducted. If, no cause is shown, the District Judge is required to forthwith order the enforcement of the liability or make ad interim order absolute and direct the sale of attached property or transfer the management of the industrial concern to the Corporation. However, under sub-Section (6), in the event of cause being shown, the F.A.O. No. 125 of 1990 - 1 2 - District Judge is required to investigate the claim of the Corporation in accordance with the provisions contained in the Code of Civil Procedure in so far as such provisions may be applied thereto. It is, thus, clear that the District Judge is competent to investigate the claim of the Corporation and not just required to pass an order in favour of the Corporation to order enforcement of the liability or making the ad interim order absolute. Same thing had been done in the present case by learned lower Court in proceeding to investigate the claim of the Corporation as to whether the respondent was entitled to rebate of 2% in interest on account of setting up of the industrial concern in centrally declared backward district of Punjab and another rebate of 1% in interest on account of refinancing of the loan, besides the entitlement of the Corporation to charge penal rate of interest on the installments which had not become due as yet. Resultantly, there is no force in the appeal, which is, therefore, dismissed. No costs. ( T.P.S. MANN ) December 04, 2008 JUDGE satish