IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 11TH NOVEMBER 2009 / 20TH KARTHIKA 1931 WA.No. 499 of 2002(E) --------------------- AGAINST THE JUDGEMENT/ORDER IN OP.9935/2001 Dated 07/11/2001 .................... APPELLANT(S): APPELLANT/PETITIONER IN O.P. ------------------------------------------ WOODY'S HOTELS (P) LIMITED, WOODS MANOR, M.G. ROAD, ERNAKULAM, REPRESENTED BY ITS DIRECTOR SHRI. P.R. DINESH. BY ADV. SRI.R.D.SHENOY, SENIOR ADVOCATE SRI.S.VINOD BHAT RESPONDENT(S): RESPONDENTS/RESPONDENTS: --------------------------------------- 1. UNION OF INDIA REPRESENTED BY THE SECRETARY, TOURISM DEPARTMENT, NEW DELHI. 2. TOURISM FINANCE CORPORATION OF INDIA LIMITED, 4TH FLOOR, PRAKASH DEEP BUILDING, 7 TOLSTOY MARG, NEW DELHI - 110 001. ADV. SRI.N.NAGARESH FOR R2 SRI.N.NAGARESH FOR R2 SRI. AJITH KRISHNAN, ADDL.CGSC FOR R1 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C .N. RAMACHANDRAN NAIR & V.K. MOHANAN, JJ. -------------------------------------------- W. A. No. 499 OF 2002 -------------------------------------------- Dated this the 11th day of November, 2009 JUDGMENT Ramachandran Nair, J. Writ Appeal is filed against the judgment of the learned single Judge declining to interfere with the dispute between the appellant and the second respondent. The appellant availed a loan for financing the construction of a hotel project. The loan was released in terms of Ext.P1 agreement produced in the O.P. Contrary to the scheme of repayment in a phased manner in the course of time, appellant pre-paid loan before the instalments fell due. However, the second respondent in addition to the payments made by the appellant claimed an amount of Rs. 37,45,892.57 which was later reduced after adjusting subsidy to Rs. 30,06,617/- which is stated to be pre-payment premium. When the O.P. was filed, the learned single Judge took; the view that the matter being dispute arising out of contract between the parties, should be settled in a civil suit. It is against this judgment that the appellant has approached this Court with this Writ Appeal. We have heard senior 2 counsel Sri. R.D. Shenoy appearing for the appellant and Sri. Nagaresh appearing for the second respondent. 2. While the case of the appellant is that the demand is not authorised by the contract, counsel appearing for the second respondent referred to clauses 4.8 and 4.12 of the General Conditions of the loan contained in Ext.P1 agreement which provides for payment of premium on pre-payment. Senior counsel appearing for the appellant contended that premium for pre-payment is not defined elaborately in the agreement and so much so the demand is not tenable. We do not propose to decide this issue because terms used are technical in nature and their meaning will have to be found from the scheme of loan granted by the second respondent and the correspondence between the parties. In any case, we do not find any ground to interfere with the judgment of the learned single Judge because in the first place the dispute arising out of contract cannot be settled in writ proceedings as it involves findings on facts controverted by the parties, which requires evidence to be taken. Further, counsel for the second respondent pointed out that writ is not maintainable against the second respondent. 3 Even though senior counsel for the appellant contended that second respondent is virtually under the control of the Central Government and only loans approved by the Government will be released by the second respondent, we do not think a writ will lie against the second respondent, because it is a public limited company promoted by various public sector undertakings like IFCI, UTI, GIC, etc. Besides holding shares of these public sector companies, a little over 25% of the shares of the second respondent are held by public at large. Therefore writ is certainly not maintainable against the second respondent even though by virtue of the control on public sector companies, Government will be able to implement it's policies in an indirect manner in the management of the second respondent. We therefore dismiss the Writ Appeal, but however, make it clear that observations of the learned single Judge with reference to the terms of the contract should not be taken as finding on any issue that may arise in the dispute between the parties. Further, since the matter is pending for long and the second respondent has not recovered pre-payment premium, but is only holding title deeds towards security, we feel the Board of Directors 4 should consider objections and if possible the matter should be settled amicably even by making some sacrifice by the second respondent. It will be open to the appellant to make a representation before the Board of Directors of the second respondent offering the amounts they will pay for them to consider for settlement. In any case, we make it clear that limitation, if any, raised should be considered after excluding the period during which the matter was pending in this Court. (C.N.RAMACHANDRAN NAIR) Judge. (V.K. MOHANAN) Judge. kk 5