IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13858 of 2008 M/S ASSAM INDUSTRIAL CORPORATION having its registered office at C/22,Industrial Area, Patliputra Colony, P.O. & P.S. Patliputra, Patna-800013 through its partner Shri Kamal Kumar Parasramka son of late Badri Naayan Parasramka resident of Mohalla Nehru Nagar, P.O. & P.S. Patliputra,District- Panba-800013........Petitioner. Versus BIHAR STATE FINANCIAL CORPORATION Situated at Frazer Road,Patna through its managing Director.....Respondent ----------- For the petitioner : M/s Arun Kumar & Anil kr.Singh For the Corporation: Mr.Girijesh Kumar 3 1.10.2008 The facts of this case indeed depict a very sorry state of affairs. Petitioner was indebted to the Bihar State Financial Corporation established under the State Finance Corporation Act, 1951. Towards liquidating its debts, the petitioner submitted on 2.3.1983 a cheque of Rs. 10,000/- drawn on Bank of Baroda, Frazer Road, Patna. The said cheque was dishonoured. Petitioner was noticed to make payment by pay order by 25.3.1983, failing which criminal proceeding would be initiated. The petitioner then purchased a Pay Order in the name of the Corporation from the Bank of Baroda being Pay Order no. 1329, dated 23.3.1983 and deposited it at the head office of the Corporation and obtained a receipt for the same. The pay order was then misled and not remitted to the branch concerned. When on reconciliation of the account, petitioner found that the amount was not duly credited in his account, he approached the Corporation, who admitted that the pay order was lost. Corporation then issued a indemnity bond to the Bank of Baroda for issuance of duplicate pay - 2 - order. Duplicate Pay Order no. 905323, dated 24.12.1999 was then issued by the Bank of Baroda and given to the Corporation, who credited the same in the accounts of the petitioner on 29.12.1999 but while doing so, they did not wave the interest which they had charged for non payment of Rs. 10,000/- for the period 25.3.1983 to 29.12.1999, which interest on the said Rs. 10,000/- itself amounted to Rs. 73,808.09 For non payment of this disputed amount, petitioner’s mortgaged assets are now notified for auction sale instead of petitioner being given a “No Dues Certificate”. This has happened even during the pendency of the Suit filed by the petitioner in this regard wherein the Corporation is appearing but still opted to proceed to auction petitioner’s assets. In the writ petition with reference to the file noting it is mentioned that the Corporation had taken opinion from their lawyer before proceeding in the matter, who had also advised to give due credit to the instrument with effect from 25.3.1983, which would have wiped out any liability of the petitioner but even that was not accepted. It is these facts that forced the petitioner to come this Court. Respondent-Corporation in its counter affidavit have sought to make up a case which cannot be accepted. They have stated that once the cheque of the petitioner bounced and petitioner was advised to make payment by pay order. The petitioner with ulterior motive managed to procure an acknowledgment of receipt of pay order from a IVth grade employee of the Corporation, who was posted in the head office in the diary and dispatch section. - 3 - In my view, this is unacceptable for the simple reason that it was not a cheque but a pay order that was deposited. A pay order is purchased in the name of the beneficiary after cash payment as against a cheque, which is paid only on presentation .A pay order is ready cash as against the cheque which is subject to realization. Why would the petitioner procure a receipt wrongly because he intended to liquidate his liability and if he has purchased pay order in the name of Corporation then there was no sense or justifiable reason for not handing it over to the Corporation. It is not disputed by the Corporation that they then subsequently gave an indemnify in favour of the Bank upon which a Duplicate pay order was issued and deposited in their account. Thus, in my view, it is clear that the respondent- Corporation did receive the payment which for some reason was misled in its transmission to its branch and for that the petitioner is now being held responsible. I may notice yet another thing. The Corporation also does not appear to be really interested in resolving the dispute. This is evident from Annexure 1 wherein as far back as on 2.7.2004 recommendation was made for referring the matter to the Board of the Corporation for an appropriate decision because that meant righting off about Rs. 73,000/- towards interest. We are in 2008 and till now Board is yet to take a decision in a commercial matter like this In the counter affidavit it is mentioned that the Board would take a decision on 29.9.2008 but even today what decision is taken has not been brought on record or this Court informed. - 4 - In that view of the matter, on petitioner’s undertaking to withdraw the Suit filed by him on re-opening of Civil Court immediately after Puja vacation, the writ petition is allowed. Respondent- Corporation is directed to give credit of Rs. 10,000/- paid by the petitioner with effect from 25.3.1983 and withdraw the petitioner’s unit from the sale advertisement. Further the respondents are directed to issue “No Dues Certificate” to the petitioner and return all his documents which he may have deposited from time to time for seeking financial accommodation from the Corporation. The writ petition is allowed. singh (Navaniti Prasad Singh)