IN THE HIGH COURT OF JUDICATURE AT PATNA --- MJC No.2109 of 2008 … SHYAM KUMAR ARORA ……………………. PETITIONER - APPELLANT Versus 1. BIHAR STATE FINANCIAL CORPORATION, FRASER ROAD, PATNA THROUGH ITS MANAGING DIRECTOR. 2. MANAGING DIRECTOR, BIHAR STATE FINANCIAL CORPORATION, FRASER ROAD, PATNA 3. CANARA BANK, A BODY CORPORATE CONSTITUTED UNDER THE BANKING COMPANIES (ACQUISITION AND TRANSFER OF UNDERTAKING)ACT, 1970 HAVING ITS OFFICE AT BANGLORE AND BRANCH OFFICE AT EXHIBITION ROAD, PATNA THROUGH ITS BRANCH MANAGER. 4. RAJESH KUMAR SON OF SRI KUWAR RAM, RESIDENT OF MOHALLA – CHITKOHRA BAZAR, P.S. – GARDANIBAGH, DISTRICT-PATNA 5. SMT. SUNITA DEVI WIFE OF SRI SHEOJI KUMAR, RESIDENT OF MOHALLA – KANKARBAGH, MAIN ROAD, POLICE STATION – KANKARBAGH, DISTRICT – PATNA ………RESPONDENTS – OPPOSITE PARTIES ----------- For the petitioner: Mr. Pramod Kumar Mr. Ritesh Kumar, Advocates For the respondents 1 & 2 : Mr. Jyoti Saran, Advocate --- P R E S E N T Hon'ble the Chief Justice And Hon'ble Mr. Justice Kishore K. Mandal --- Dated, the 23rd September, 2008 Do we restore the Letters Patent Appeal no.426 of 2007, which stood dismissed for non-compliance of the order dated 23.04.2008, is a question for consideration in this restoration application? 2. The applicant is the original writ petitioner. There appears to be no dispute that he took loan from the Bihar State Financial Corporation (for short, „BSFC‟) for starting the business and 2 for purchasing machinery in the year 1984. The loan was to the tune of Rs.13,02,000/- (although the applicant submits that actual amount disbursed is Rs.12,13,000). It is also an admitted position that for securing the loan, he mortgaged the subject property. That he failed to pay the instalments as per the agreement and the schedule is not in dispute. In the year 2002, before the steps were taken by BSFC for sale of the land, building, plant and machinery, the amount exceeded rupees sixty lacs. The sale was effected in favour of respondent no.4 in the month of March 2002 for a sum of Rs.30 lacs. The petitioner was informed of the sale and, rather, he was asked whether he could match the price offered by respondent no.4. There was no response from the applicant. Despite the fact that the sale was effected in favour of the respondent no.4 in the year 2002 and the applicant was aware of that, at no point of time he challenged the sale effected in favour of the respondent no.4. It was only in the year 2006 that he approached this court by filing the writ petition, from which the present proceedings have arisen praying therein that BSFC may be directed to do one time settlement of the entire loan amount outstanding as on 31.3.1994 under OTS Scheme, 1994 and the incidental reliefs. 3. The writ petition was contested by BSFC. It may be noticed here that respondent no.4 was impleaded in the writ petition later on. The single judge dismissed the writ petition vide his order 3 dated 3rd April, 2007. Aggrieved by this order, the letters patent appeal being LPA. No.426 of 2007 was preferred by the present applicant. 4. It transpires from the proceedings in the letters patent appeal that on 11th January, 2008, the counsel for the appellant sought time to seek instructions from the appellant whether he was prepared to deposit Rs.30 lacs within ten days. The proceedings reveal that further time of two weeks was granted on 7th March, 2008 to the counsel for the appellant to take instruction in the light of the order dated 11th January, 2008. The matter then came up before the Bench on 25th March, 2008. 5. The counsel for the appellant stated before the court that the amount of Rs.30 lacs shall be deposited within three months. However, the court declined to accept that and granted time of two weeks for depositing the amount of Rs.30 lacs by the appellant. Since there was some typographical error with regard to the amount in the order dated 25th March, 2008, it was corrected on 23rd April, 2008, although the correction was formal as the applicant was well aware that he was required to deposit Rs.30 lacs. The orders dated 25th March, 2008 and 23rd April, 2008 may be re-produced by us as it is: 25th March, 2008 “When the matter was taken up on 11.1.2008, ten days time was granted to the learned counsel for the appellant to seek instruction as to whether the appellant is prepared to deposit Rs.30,0000/-. Mr. Pramod Kumar, appearing on behalf of the 4 appellant states that appellant shall deposit the amount within three months. We are not inclined to grant such a long time for deposit of the amount. In case the appellant deposits the amount within two weeks in this Court, fresh notice be issued to respondent no.5 under registered cover with A/D as also ordinary process. Requisites for the said purpose be filed within three weeks. In case the appellant does not deposit the amount within the time stipulated, the appeal shall stand dismissed without further reference to a Bench.” 23rd April, 2008 “In our order dated 25.3.2008 instead of the sum 30,00000/-, 3,00000/- has been mentioned. Let it be read as 30,00000/-. Further the petitioner shall deposit the aforesaid amount in the shape of the bank draft by 28.4.2008 in the name of the Bihar State Financial Corporation with the Joint Registrar (Judicial) of this Court, which shall be kept in his safe custody. Order dated 25.3.2008 is modified to the extent indicated above.” 6. Since the amount was not deposited within time, the appeal came to be dismissed for non-compliance of the order dated 25th March, 2008, which was peremptory. 7. The counsel for the applicant submits that the demand draft of Rs.30 lacs are available with him and the delay in compliance occurred because of the illness of the appellant. He would submit that delay be condoned and letters patent appeal be restored. 8. We are afraid, any indulgence by this court in the facts and circumstances of the case, would not be in the interest of justice for more than one reason. 5 9. First, the conduct of the applicant clearly shows that he never adhered to the time schedule for payment of instalments and repeatedly committed default. As a matter of fact, after the year 1984 when the loan was taken, he hardly paid instalments. Before the Division Bench on 25th March, 2008, he insisted for time of three months for deposit of the amount of rupees thirty lacs which was not accepted by the court and granted time of two weeks. But in the garb of typographical error, the amount was not deposited, although he was well aware that the amount of Rs.30 lacs was to be deposited by him. Then on 23rd April, 2008, the court directed the applicant to deposit the amount by way of bank drafts by 28th April, 2008, which he did not do. The conduct of the applicant disentitles him to any indulgence by the court. 10. Second, and more importantly, the sale in favour of the respondent no.4 has never been put in issue by the applicant directly. It is not that the applicant was not aware of the sale. As a matter of fact, BSFC asked him to match the offer given by the respondent no.4, which he never did. His prayer for one time settlement was rejected way back on 31st March, 1995. He was informed by the communication dated 31st March, 1995 that his case for one time settlement was not applicable as valuation of assets was higher than the outstanding. Yet he was asked to make 25% of the balance outstanding for getting the loan rescheduled if at all he was 6 interested in paying under scheme which also he never did. In the writ petition that was filed in the year 2006, his main thrust was for one time settlement under OTS Scheme, 1994. He was aware that his prayer for one time settlement has been rejected way back in the year 1995 and he even did not avail of an opportunity of re- schedulement of loan by making payment of 25% of the balance outstanding as on 31st January, 1995. The sale in favour of the respondent no.4 being absolute and possession having been handed over to him, the confirmed sale in favour of the respondent no.4 at this distance of time does not deserve to be undone. 11. The offer of the appellant to deposit Rs.60 lacs before the Division Bench or Rs.75 lacs before the single judge after 5/6 years of the sale having been confirmed in favour of respondent no.4 in the year 2002 is of no avail since he was already given an opportunity to match the offer of Rs. 30 lacs in the year, 2002, but he never availed that opportunity. 12. We are satisfied that the applicant does not deserve any indulgence and the appeal does not deserve to be restored. MJC is rejected accordingly. R. M. Lodha, CJ. Kishore K. Mandal, J. Neyaz/ 7