IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Letters Patent Appeal No.380 of 2009 (O&M) Date of decision: 16th September, 2009 M/s Shiva Cold Store & Ice Factory … Appellant Versus Punjab Financial Corporation … Respondent CORAM: HON’BLE MR. JUSTICE T.S. THAKUR HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Nitin Thatai, Advocate for the appellant. Notes: 1. Whether Reporters of local newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? KANWALJIT SINGH AHLUWALIA, J. Civil Misc. No. 1048-LPA of 2009 For the reasons stated in the application, the same is allowed and delay of ten days in filing the appeal condoned. Civil Misc. No. 1049-LPA of 2009 Application is allowed and Annexure A-1 taken on record. Civil Misc. No. 1050-LPA of 2009 Application is allowed, subject to just exceptions. Documents (Annexures P-1 to P-12 and A-1) are taken on record. Letters Patent Appeal No. 380 of 2009 Letters Patent Appeal No.380 of 2009 M/s Shiva Cold Store & Ice Factory (hereinafter referred to as, ‘the appellant Firm’) preferred a writ petition in this court. A Single Judge of this Court opined that disputed questions of fact are involved, which cannot be decided while exercising the writ jurisdiction. The petitioner was granted option to institute a Civil Suit, if so advised. As a consequence of the above opinion, the writ petition was dismissed. Aggrieved against the same, the petitioner has filed present appeal. Narration of brief facts of the case is necessary to appreciate the findings returned by the Single Judge of this Court. M/s Shiva Cold Store & Ice Factory, a partnership Firm, consisting of seven partners, applied for grant of loan to respondent, Punjab Financial Corporation (hereinafter referred to as, ‘the respondent Corporation). An advance loan of Rs.50.00 lakh was sanctioned and on 15th May, 1998, the appellant Firm executed a mortgage deed in favour of the respondent Corporation. The loan was disbursed to the appellant Firm between 5th May, 1998 to 27th April, 1999. It is alleged that due to delay in disbursal of the loan, the appellant Firm suffered losses due to cost overruns and delay in the implementation of the project. As per the terms and conditions, the loan was to be returned in 78 monthly installments. The first installment was to be paid on 15th November, 1999 and other installments thereafter at monthly rests. The rate of interest determined was 17 per cent per annum, payable on quarterly basis. The appellant Firm averred that up to 31st March, 2003, the loan amounting to Rs.52.77 lakh was paid back to the respondent Corporation. The respondent Corporation floated a scheme in consonance with the Reserve Bank of India guidelines. The scheme was called ‘Punjab Financial Corporation One Time Settlement (General) Scheme 2003’. The appellant Firm 2 Letters Patent Appeal No. 380 of 2009 approached the respondent Corporation for settlement of the loan account vide letter dated 19th June, 2003 (Annexure P-4). The Settlement Committee of the respondent Corporation held its meeting on 18th July, 2003 and in pursuance of one time settlement policy, the appellant Firm was called upon to pay Rs.46.75 lakh, along with further interest on the settlement amount from 15th May, 2003 onwards at the rate of 14 per cent per annum. The amount was to be paid within 21 months. The respondent Corporation had acknowledged receipt of Rs.4.70 lakh deposited by way of cash as 10 per cent paid towards OTS. The balance amount of Rs.42.05 lakh was to be paid in 21 monthly installments. The amount of each installment fixed was Rs.2,00,238.10. Besides this, the interest at quarterly rests was to be paid separately. The payment of installments was to commence from 30th August, 2003. The appellant Firm has pleaded that due to hard times faced by the appellant Firm, schedule of repayment drawn as per one time settlement scheme could not be adhered to. It is stated that orally, the Managing Director and other senior officers agreed to condone the delay. Lastly, it is stated that on 16th September, 2006, the appellant Firm paid Rs.3.20 lakh towards the final settlement. Further version of the appellant Firm is that on 11th January, 2007, a partner of the appellant Firm visited the Head Office of the respondent Corporation and learnt that an amount of Rs.17,250/- is due and immediately Rs.20,000/- were deposited. The grievance of the appellant Firm is that delay in making the payment has not been condoned and the loan account has not been settled as per one time settlement scheme, as the essential requisite to pay the loan amount within the prescribed schedule was not maintained. It is stated that the Board of Directors of the respondent Corporation had 3 Letters Patent Appeal No. 380 of 2009 taken a general decision that a delay of more than one year shall not be condoned. Case of the appellant Firm is that from 1st April, 2003 to 31st March, 2007, in cases of 159 promoters, the delay was condoned. Therefore, the appellant Firm cannot be dealt with differently, as according to the appellant Firm, the respondent Corporation refused to condone the delay of 20 months (600 days). The appellant Firm has weaved a story that on 10th December, 2008, all of a sudden, 6 – 7 officers of the respondent Corporation came to the Cold Store of the appellant Firm for exercising the powers vested in the respondent Corporation under Section 29 of the State Financial Corporation Act (hereinafter referred to as, ‘the Act’). It is alleged that the appellant Firm was threatened, therefore, to avoid complication, due to coercion, the appellant Firm had to pay Rs.14.50 lakh, as the officials of the respondent Corporation had threatened to use force. It is stated that in these circumstances, the appellant Firm had to part with Rs.14.50 lakh. The prayer made in the writ petition is that letter dated 26th March, 2007 (Annexure P-1), whereby one time settlement scheme was cancelled and a demand notice of Rs.29,760/- issued, be quashed and further a writ of mandamus be issued to the respondent Corporation to refund Rs.14.50 lakh, which according to the appellant Firm, was paid under duress to the respondent Corporation. The appellant Firm has relied upon the decision of a Division Bench of this Court rendered in Civil Writ Petition No. 11385 of 2007 titled as ‘M/s Bharaj Industries v. Punjab Financial Corporation’ and Civil Writ Petition No. 11413 of 2007 titled as ‘M/s H.B. Industries v. Punjab Financial Corporation’ decided on 10th April, 2008, wherein it was held that once in accordance with the terms of 4 Letters Patent Appeal No. 380 of 2009 one time settlement scheme, the loan has been repaid, on the delayed amount, the defaulter is to pay only the interest @ 12 per cent per annum. We find that no general dicta of the law has been laid. That case was decided on the facts of that case. In the present case, the appellant Firm has paid Rs.14.50 lakh, which according to the appellant Firm, was in excess and the same was paid as the appellant Firm was compelled to pay under the threat of taking over the premises of the appellant Firm, by invoking section 29 of the Act. Similarly, the decision of another Division Bench of this Court rendered in Civil Writ Petition No. 11932 of 2007 titled as ‘Surya Auto Industries v. Punjab Financial Corporation’ decided on 21st November, 2008 also cannot be applied as in that case, section 29 of the Act was invoked and the Punjab Financial Corporation had taken over the Unit of the petitioner. In that case, it was urged that after the Unit was taken over, if there was delay on the part of the Corporation to dispose of the property, the defaulter cannot be fastened with penal interest. Counsel for the appellant has also relied upon ‘Central Bank of India v. Ravindra’ 2002 (1) SCC 367 to urge that the appellant Firm is not liable to pay the penal interest. We cannot determine whether the amount of Rs.14.50 lakh paid by the appellant Firm was voluntary or under threat or duress. By simply pleading that on 10th December, 2008, 6 – 7 officers of the respondent Corporation came and they intended to take over the Unit and sell it at a throw-away price, therefore, the amount of Rs.14.50 lakh was paid, is essentially a disputed question of fact. In ‘Life Insurance Corporation & Ors. v. Smt. Asha Goel & Anr.’, 2001(2) SCC 160; 2001 (1) RCR(Civil) 347 (SC), the Hon’ble Apex Court has held as under: "10. Art. 226 of the Constitution confers extraordinary jurisdiction on the High Court to issue high prerogative writs for enforcement of the fundamental rights or for any other 5 Letters Patent Appeal No. 380 of 2009 purpose. It is wide and expansive. The Constitution does not place any fetter on exercise of the extraordinary jurisdiction. It is left to the discretion of the High Court. Therefore, it cannot be laid down as a general proposition of law that in no case the High Court can entertain a writ petition under Art. 226 of the Constitution to enforce a claim under a life insurance policy. It is neither possible nor proper to enumerate exhaustively the circumstances in which such a claim can or cannot be enforced by filing a Writ Petition. The determination of the question depends on consideration of several factors like, whether a writ petitioner is merely attempting to enforce his/her contractual rights or the case raises important questions of law and constitutional issues, the nature of the dispute raised; the nature of inquiry necessary for determination of the dispute etc. The matter is to be considered in the facts and circumstances of each case. While the jurisdiction of the High Court to entertain in Writ Petition Art. 226 of the Constitution cannot be denied altogether, Court must bear in mind the self-imposed restriction consistently followed by High Court all these years after the constitutional power can into existence in not entertaining Writ Petitions filed for enforcement of purely contractual rights and obligations which involve disputed questions of facts. The Courts have consistently taken the view that in a case where for determination of the dispute raised, it is necessary to inquire into facts for determination of which it may become necessary to record oral evidence a proceeding under Art. 226 of the Constitution, is not the appropriate forum. The position is also well settled that if the contract entered between the parties provide an alternate forum for resolution of disputes arising from the contract, then the parties should approach the forum agreed by them a and the High Court in writ jurisdiction should not permit them to by pass the agreed forum of dispute resolution. At the cost of repetition it may be stated that in the above discussion we have only indicated some of the circumstances in which the High Court have declined to entertain petitions filed under Art. 226 of the Constitution for 6 Letters Patent Appeal No. 380 of 2009 enforcement of contractual rights and obligations; the discussions are not intended to be exhaustive. This Court from time to time disapproved of a High Court entertaining a petition under Art. 226 of the Constitution in matters of enforcement of contractual rights and obligation particularly where the claim by one party is contested by the other and adjudication of the dispute requires inquiry into facts." In the present appeal, the agreement arrived at between the parties, from which contractual obligation arise, has not been placed on record. One Time Settlement scheme has also not been annexed. While dismissing the writ petition of the appellant Firm, the learned Single Bench has observed as under: “The petitioner thereafter has paid a sum of Rs.14.50 lacs to the respondent-Corporation on 10.12.2008 though, the respondent- Corporation has further demanded a sum of Rs.29,760/- towards full and final settlement of the accounts. After paying Rs.14.50 lacs, that the petitioner has approached this Court challenging the additional demand of Rs.29,760/- and seeking the refund of Rs.14.50 lacs on the solitary ground that the said amount was recovered by the Corporation forcibly, under threat and by using coercive means. Having heard Learned Counsel for the Petitioner, I am satisfied that the allegations of threat or use of coercive means of force by the authorities is a seriously disputed question of fact which cannot be effectively settled by this Court in exercise of its writ jurisdiction. Dismissed. The Petitioner may, if so advised, file a civil suit.” On the touchstone of the observations made by Their Lordships of Hon’ble Supreme Court in Asha Goel’s case (supra), we are of the view that the impugned order dated 3rd March, 2009 passed by a 7 Letters Patent Appeal No. 380 of 2009 Single Bench of this Court suffers from no infirmity and no interference is warranted. Hence, the present appeal is dismissed without any order as to costs. [T. S. THAKUR] CHIEF JUSTICE [KANWALJIT SINGH AHLUWALIA] JUDGE September 16, 2009 rps 8