Patna High Court LPA No.596 of 2005 dt.30-09-2011 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.596 of 2005 IN (CIVIL WRIT JURISDICTION CASE 2092/2005) =========================================================== 1. The Bihar State Financial Corporation, Fraser Road, Patna through its Managing Director 2. The Managing Director, Bihar State Financial Corporation, Fraser Road, Patna 3. The Manager Incharge, Zone- V, Bihar State Financial Corporation, Fraser Road, Patna 4. The Branch Manager, Bihar State Financial Corporation, Shahabad Branch, Arrah. .... .... Appellants Versus 1. Alakh Saran @Alakh Saran Singh, son of Late Dr. Ram Prasad, resident of Jail Road, Arrah, P.S.Arrah, District Bhojpur, proprietor of M/s,Saran Industries, Jail Road, Arrah .... .... Petitioner-Respondent 1st set 2. Manoj Kumar, C/o/ Anugrah Narain Singh, Singh Mahal, P.O.Gausganj, P.S. & Town Arrah, District Bhojpur Respondent/Respondent 2nd set with Letters Patent Appeal No. 598 of 2005 IN (CIVIL WRIT JURISDICTION CASE 4316/2005) =========================================================== 1 The Bihar State Financial Corporation, Fraser Road, Patna through its Managing Director 2. The Managing Director, Bihar State Financial Corporation, Fraser Road, Patna 3. The Branch Manager, Bihar State Financial Corporation, Shahabad Branch, Arrah. .... .... Appellants Versus Alakh Saran @Alakh Saran Singh, son of Late Dr. Ram Prasad, resident of Jail Road, Arrah, P.S.Arrah, District Bhojpur, proprietor of M/s, Saran Industries, Jail Road, Arrah .... .... Petitioner-Respondent =========================================================== Appearance : (In LPA No. 596 of 2005) For the Appellants : Mr. Y.V.Giri, Sr.Advocate Mr. Raju Giri,Advocate For the Respondent No.1 : Mr. Rai Shivaji Nath , Sr.Advocate For the Respondent no.2 : Mr.Rajendra Prasad Singh. Sr.Advocate Mr.Ramakant Singh, Advocate (In LPA No. 598 of 2005) For the Appellants : Mr.Raju Giri, Advocate For the Respondent : - - =========================================================== Patna High Court LPA No.596 of 2005 dt.30-09-2011 2 CORAM: HONOURABLE JUSTICE SMT. T. MEENA KUMARI and HONOURABLE MR. JUSTICE VIKASH JAIN ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE VIKASH JAIN) The present L.P.As. have been filed against the common order dated 10.5.2005 passed by the learned Single Judge in CWJC No.4316 of 2005 with CWJC No.2092 of 2005 whereby, inter alia memo no.335 dated 15.2.2005 issued by the Managing Director of Bihar State Financial Corporation, Patna (“Corporation” for short) was quashed and the Corporation was directed to accept the offer of the writ petitioner (Respondent no.1 herein) for retention of the unit by accepting the initial cash amount and to take all necessary consequential steps in this regard. 2. The brief material facts of the case may be set out hereinafter : 3. It appears that the appellant Corporation released an amount of Rs. 99,000/- out of a sanctioned loan of Rs.1,46,000/- to the respondent no.1 in the year 1976 for the purpose of setting up a unit for manufacture of Asbestos Cement Pipes. The loan was secured by creating an equitable mortgage by deposit of original title deeds of the assets of the petitioner’s unit of the Respondent No.1 under the name and style of M/s. Saran Industries. The loan was, however, recalled owing to defaults committed by the Respondent No.1 in repayment thereof. In due course, process for auction sale of the mortgaged /hypothecated assets of the unit was also commenced in 1995 by issuance of an advertisement which later on came to be settled in favour Patna High Court LPA No.596 of 2005 dt.30-09-2011 3 of Respondent no.2 on the basis of his offer of Rs. 4.62 lakhs. Thereafter, on 18.7.2004 another advertisement for sale was issued disclosing the aforesaid offer, with a view to attracting better offers from other interested persons, but however, no further response from any other person was received. 4. As such on 23.12.2004 a decision was taken and sale order was issued in terms of order No.226 dated 23.12.2004 (Annexure-2) in favour of Respondent no.2 on the terms and conditions mentioned therein. One such condition as stated in para 2 of the order provided for initial cash down payment of Rs.1.16 lakhs by the respondent no.2 after 21 days but within 30 days from the date of issue of that order. Further, para 6 of the same order also granted an option to the original promoter being Respondent no.1 to retain the assets on matching terms and conditions, and in case he so agreed then to make payment as per provisions in para 2 within 21 days from the date of issue of the sale order. Learned counsel for the appellants submits that the time granted to the respondent no.1 for making payment within 21 days of sale order dated 23.12.2004 thus expired on 12.1.2005. 5. It is quite clear from the sequence of events that the respondent no.1 did not exercise his option to retain the assets which is evident from the fact that not only did he not respond to the sale order by expressing his clear intention of retaining the assets, rather he instead filed an OTS application which disclosed his intention to allow the sale order to be confirmed and take effect in favour of Respondent no.2, thus, Patna High Court LPA No.596 of 2005 dt.30-09-2011 4 demonstrating his complete disinterest in retaining the unit or its assets. Needless to say payment of the amount required in case he opted to retain the assets was also not made within due time, nor any extension was sought in this behalf by respondent no.1. 6. On expiry of 21 days from the date of sale order being the time available to the Respondent no.1 as per terms therein, the initial cash down payment was allowed to be made on 13.2001.2005 by respondent no.2 in terms of the sale order which was duly accepted by the appellant Corporation. 7. It is only thereafter on 14.1.2005 beyond the expiry of the permitted time that the respondent no.1 also deposited the initial sum of Rs.1.16 lakhs for the purpose of retention of the assets which was thus rejected by the Managing Director of the appellant Corporation and duly communicated by letter no.270 dated 19.1.2005. An application was then filed by the respondent no.1 on 19.1.2005 itself under the OTS scheme for the purpose of retention of assets, which was however, also rejected by order dated 15.2.2005 as the sale order in favour of respondent no.2 had also come into effect. The respondent no.1 however, was granted liberty to file a fresh representation for settling his outstanding dues under the OTS scheme, time for which was still available. 8. Being aggrieved by such rejection of his claim to be allowed to retain the mortgaged assets the respondent no.1 came up before this Court in CWJC No.2092 of 2005, which was disposed of in his favour by Patna High Court LPA No.596 of 2005 dt.30-09-2011 5 order dated 10.5.2005 and is impugned herein. 9. On a perusal of the order passed by the learned Single Judge, it transpires that the respondent no.1 had taken the stand that his application dated 14.1.2005 for retention of the mortgaged assets was within the stipulated period of 21 days considering the fact that he had received the Corporation’s letter dated 23.12.2004 only on 28.12.2004. It was submitted that there was thus only a day’s delay and for such a small lapse, the appellant Corporation was not justified in its action of having accepted the offer of the Respondent no.2. 10. After giving our careful consideration to the materials on record and the statements of the learned counsels appearing for the parties, we are unable to uphold the view of the learned Single Judge. 11. The facts and circumstances surrounding of the offer of Respondent no.1 clearly demonstrate that such offer was not worthy of being considered primarily for the reason that the same was beyond the time granted by the appellant Corporation. The sale order dated 23.12.2004 made it clear that respondent no.1 was permitted to exercise his option within 21 days from the date of issue of that letter and thereafter, the respondent no.2 was permitted to make the initial cash down payment upon expiry of 21 days but within 30 days from the date of issue of the sale order. A perusal of the sale order itself shows that the same has been signed on 22.12.2004 and has been issued vide memo no.226 dated 23.12.2004. Indisputably, the respondent no.1 had made the requisite payment as late as on 14.1.2005 which was beyond the Patna High Court LPA No.596 of 2005 dt.30-09-2011 6 stipulated 21 day period. 12. It is further admitted by the respondent no.1 that the sale order dated 23.12.2004 was received on 28.12.2004 at his end, but he has not been able to explain why he did not make a request at least seeking extension of time for making the payment before the expiry of the time granted to him. 13. On the contrary it is borne out from the records that he took the diametrically opposed action of applying under the OTS scheme for settling his outstanding dues. This establishes beyond doubt that he had no intention whatsoever of availing the offer for retention of the mortgaged assets. The payment made by the respondent no.1 on 14.1.2005 was thus clearly an afterthought and having been made beyond the permissible time he could not be heard to complain of arbitrariness on the part of the appellant Corporation. 14. Respondent no.2 on the other hand has exercised his right and option in terms of sale letter dated 23.12.2004 by making the requisite payment of Rs.1.16 lakhs within the time frame allotted to him and as such the right to acquire the mortgaged assets has vested in him. 15. In the above circumstances, we are of the view that no indulgence to the respondent no.1 was called for in the facts and circumstances of the case. In view of the fact that the payment made by respondent no.1 was itself beyond time and after the initial cash payment of Rs. 1.16 lakhs had already been validly accepted from the Respondent No. 2, the other aspects considered by the by the learned Single Judge need not be Patna High Court LPA No.596 of 2005 dt.30-09-2011 7 gone into. 16. The L.P.As. are accordingly allowed and the order of learned Single Judge is set aside. The Appellant Corporation is free to proceed with the sale order dated 23.12.2004 in favour of the Respondent No. 2 in accordance with law and the Respondent No. 1 shall not be entitled to retention of the assets of the unit. As far as the amount of Rs. 1.16 lakhs received on 14.1.2005 from the Respondent No. 1 is concerned, the same may be adjusted by the appellant Corporation against the amounts remaining outstanding against the Respondent No. 1, including interest at the agreed rate. (T. Meena Kumari, J.) (Vikash Jain, J.) Patna High Court, Dated, the 30th September, 2011 N.A.F.R Chandran