CIVIL WRIT JURISDICTION CASE No.10221 OF 1999 SHYAM NARAIN SINHA, son of Late Ram Barai Lal, resident of Mohalla Katirabag, Ara, P.S. Ara Nawadah District – Bhojpur ------------(Petitioner) Versus 1. Managing Director, Bihar State Financial Corporation, Frazer Road Patna. 2. Branch Manager, Bihar State Fionancial Corporation, Branch Ara, Mohalla Pakri, P.O. Ara District – Bhojpur 3. Sanjay Chopra Maharana Pratap Nagar, P.O. Nawadah, Arrah, Bhojpur. --------(Respondents) ------------------ For The Petitioner : Mr. Kai Das Chatterjee, Adv. Mr. Amlesh Kr. Verma, Adv. For The Respondent : Mr. Girijesh Kumar, Advocate. P R E S E N T THE HON'BLE MR. JUSTICE AJAY KUMAR TRIPATHI A. K. Tripathi, J. Heard learned counsel for the petitioner and learned counsel for the State. Petitioner is the father of the original promoter. One Kamlesh Kumar Sinha set up an industry on disbursement of certain amount of loan in the name of M/s Kamlesh Engineering Works located at Club Road, Arrah. The sanction of loan in favour of the original promoter was made some time in the year 1986 and the term loan was of about 3.05 lakhs. Some repayment till 26.12.1989 was made by him but thereafter in the year 1990 he became traceless. In absence of repayment the respondents Bihar State Financial Corporation (hereinafter referred to as the ‘corporation’) initiated a proceeding under - 2 - section 29 of the Act. Out of concern or may be family pride father of the original promoter (the present writ petitioner) decided to take responsibility upon himself not only to settle the dues of the corporation but may be even run the Unit. He decided to communicate with the respondent’s corporation and wrote many a letters in the year 1997. The matter was considered and certain terms and conditions were laid down for the petitioner to fulfill for a reconsideration of withdrawing the proceeding under section 29 of the Act. The earliest offer made by the corporation to the petitioner is dated 22.03.1999, and has been brought on record as Annexure – 4, not all the terms and conditions need be noted in the present order but some of them are that the petitioner was given a months time to repay 5.52 lakhs in one lump sum. Since corporation had found a purchaser who had deposited Rs. 60,000/- (sixty thousand only) the same had to be also paid back and 18% interest has to be borne by the petitioner if the refund of Rs. 60,000/- (sixty thousand only) to the purchaser had to be made. There are several other conditions with regard to the rate of interest which on a reading does give a feel to the court that it was loaded against the petitioner. The court also gets a feeling that the corporation did not have patience and indulgence for the petitioner. Annexure – 2 is the offer made to the purchaser by the corporation. The purchaser was supposed to one Sanjay Kumar - 3 - Chopra for whom the consideration money fixed for the Unit was 2.95 lakhs only. Out of this consideration money he was to pay 25% by way of a Bank Draft within 21 days of the date of issue of the order for confirmation of sale in his favour and balance amount to Rs. 2.95 lakhs was converted into loan repayable in a period of five years in twenty equal quarterly installments and the first installment becoming due on 31st January, 1997. The installment worked out for him was Rs. 11067.58 Paise. The interest component was 20% per annum, rest of the other conditions are not required to be dealt with in detail. When the petitioner learnt about the terms and conditions which had been offered to the purchaser the private respondents no. 3, he approached the corporation for reconsideration. He demanded a kind of parity or fairness in the decision making process, more so, since the respondents are not only statutory body but a public body and certain amount of responsibility is thrust upon them in decision making, specially in public domain. Respondents however adopted the attitude of take it or leave it. The petitioner did not succeed in getting any concession to the offer made to him. He even contends that probably it was purposefully done to shut him out of the scene, so that private respondents Sanjay Kumar Chopra could have posses the unit at his own leisure and time without making any major financial outlay. - 4 - Vide order dated 23.09.1999, the sale of the Unit was confirmed in favour of private respondents the petitioner is aggrieved by this communication and decision and therefore, the writ application came to be filed. At the time of admission, the court decided to protect the interest of the petitioner by directing that till further orders the Unit in question would not be sold and the assets and liabilities of the Unit was protected. In other words, by virtue of the order dated 14.10.1999, a kind of status quo came to be maintained and Annexure – 1 to that extent was not given effect to. Notice had been issued to the private respondent but he has chosen not to appear or assist the court. The counsel for the respondent’s corporation also informs the court that he has not been in touch with the office of the corporation on the matter for a long long time which could be an indication of the fact that he might have lost interest in the matter, since the writ application is almost 10 years old when it was initially filed. Counsel for the corporation is present and has submitted in favour of the decision for auction sale of the Unit. His submission is that the corporation has acted bonafidely and only to protect its commercial or financial interest. The offer made to the private respondent was in terms of his commitment to the purchase and to assure that a buyer does emerge which will facilitate recovery of some amount of money which was loaned out to the original promoter. - 5 - No doubt the object for such decision is laudable but the test of the pudding is in eating because there is nothing to show from records that the respondent corporation at any point of time really wanted to consider the offer of the petitioner with equal magnanimity if not equality. If the corporation would have been a little less tight fisted may be, they could have struck a bargain with the petitioner whose sole interest in saving the Unit was his emotion and feeling for a son who had gone missing and had not been heard in all these years. A dispassionate reading of Annexure – 4 with Annexure –2 of the writ highlights the issue and reaffirms the feeling of discrimination which the petitioner is making a grievance. Learned counsel for the petitioner has no quarrel with the power which the corporation has under section 29, but he only wants a fair treatment in matter of decision making process. Even today he is willing to meet the obligation of the original promoter provided the finance corporation uses the same yardstick and may be on similar laid down consideration as purchaser in matters of repayment of the outstanding dues against the Unit. The present petitioner is the father of the original promoter, he has no responsibility or liability to the Corporation. Merely because he happens to be the father of the original promoter, it does not mean that the respondents corporation has to be harsh in its decision making process. - 6 - The court does come to a considered opinion that the matter requires reconsideration at the level of the corporation with an observation that the terms and conditions which had been offered to the purchaser, who is anyway not interested in pursuing the matter would be kept in mind so that the petitioner wish to wash away the stigma or the liability which had been created by his son may be fulfilled. The writ application is allowed. Annexure – 1 is quashed with a direction that an early decision be taken to resolve the dispute. Patna High Court The 25th Day of November, 2008 NAFR/AFR, Rajeev/ (Ajay Kumar Tripathi, J.)