Case: U.P. Financial Corpn.  Vs. Naini Oxygen &amp; Acetylengens Co. Ltd.&amp;Anr

The case of theFinancial Corporation (for short the "Corporation) is that it was established under the State Financial Corporation Act, 1951 (hereinafter referred to as the "Act). On 10th December, 1975, it sanctioned a term loan of Rs. 30 lakhs to the 1st(for short the "Company) payable in 17instalments by the 22nd of August, 1986. The Memorandum of Agreement executed between the Corporation and the Company and the Deeds of Mortgage and Hypothecation executed by the Company in favour of the Corporation, inter alia provided for recall of the entire balance of the loan in the event of default on the part of the Company in paying two instalments of the loan and further to recover the balance of loan as arrears of land revenue. Accordingly, the Corporation disbursed Rs. 18 lakhs to the Company in 1977 and Rs. 10 lakhs in 1978. In 1979, the Acetylene Gas Plant of the Company was commissioned. In 1980, the Corporation disbursed the balance of Rs. 2 lakhs to the company thus making the total payment of loan of Rs. 30 lakhs. In July 1981, the Oxygen Gas Plant of the Company was also commissioned.The Company, however, made persistent defaults in repayment of the loan instalments with the result that the recovery certificate was issued against it under Section 3 of the U.P. Public Moneys (Recovery of Dues) Act. The Company challenged the said recovery proceedings before the High Court in W.P. No. 15648 of 1981 which, however, was withdrawn by it later. Thereafter on 30th November, 1981, the Company filed Company Petition No. 23 of 1981 under Sections 397 and 398 of the Companies Act in the High Court seeking removal of persons then in management on grave charges of manipulation of accounts, reallotment of forfeited shares etc.On 25th March, 1982, the State Government issued Office Memorandum enunciating a scheme for rehabilitation of sick units and setting up, inter alia a State LevelCommittee with power to approve loan upto Rs. 30 lakhs. On 9th January, 1984, there was a compromise in Company Petition No. 23 of 1981 whereunder the then management of the Company started running the plants. On 30th November, 1984, the Joint Director of Industries declared the Company to be a sick unit. On 5th October, 1985, the State LevelCommittee suggested a Rehabilitation Package which envisaged reschedulement of payment by the Company, arrangement of finances by the Company, appointment of two Directors nominated by the Corporation and execution of personal guarantee by the Directors.On 19th October, 1985, the Corporation wrote a letter to the Company stipulating the said conditions of the package. On 28th November, 1985 the terms of the Rehabilitation Package were acknowledged by the Company. On 5th December, 1985, the Board of Directors of the Corporation approved the Rehabilitation Package. The Company, however, did not take any steps to implement the Rehabilitation Package.On 30th May, 1986, the Corporation issued to the Company notice under Section 29 of the Act for recovery of Rs. 90, 31, 102.13 which was made up on the principal amount of Rs. 30 lakhs, interest amount of Rs. 59,40,514.13 upto 31st March, 1986 and expenses of Rs. 90,588.00. The Company gave a reply to the notice on 5th June, 1986.On 13th June, 1986, the Corporation took over the industrial establishment under Section 29 of the Act. On 11th August, 1986, the Corporation pointed out to the Company that none of the conditions of the Rehabilitation Package was complied with. On 1st October, 1986, the Company filed W.P. No. 16691 of 1986 in the High Court. On 16th December, 1986, the Corporation declined to further liberalise the package. On 13th/15th January, 1987, the High Court allowed the writ petition and directed the Corporation to hand over the possession of the industrial unit to the Company without any adjustment. On 5th March, 1987, this Court granted special leave and stayed the operation of the High Courts order and asked the Industrial Reconstruction Bank of India (IRBI) to submit its report as to the viability of the Company. On 29th January, 1988, the IRBI made a report stating therein inter alia that after reschedulement and further infusion of about Rs. 1 crore, the unit will be "marginally viable.

Reasoning: 8. As against the aforesaid case of the Corporation, the contention of the Company is that pursuant to the loan sanctioned by the Corporation, the Company imported twocompressors from the U.S.A. and commissioned the Acetylene and Oxygen plants in 1979 and 1980 respectively. On account of the mismanagement of the majority group then dominating the management of the company, the present management which consisted of a minority of shareholders, had to institute proceedings in the High Court under Sections 397 and 398 of the Companies Act, and in Feburary 1984 the High Court under a compromise order got the shares of the then management tramsferred to the present management at the face value of Rs. 10/per share. The equity capital invested by the present management, viz., D.P. Agrawal Group, therefore, became of the order of Rs. 18 lakhs. Thereafter, the present management took various steps to revive the Company which had become sick and brought the plants into running condition after overhauling them at a considerable cost. For the purpose, the present management gave loans of about Rs. 30 lakhs to the Company. On this investment, the total investment of the present management group became of the order of about Rs. 50 lakhs.Both the Acetylene and Oxygen plants, in the meanwhile, were working to full capacity, the same being 24 hour continuous process plants. However, on 13th June, 1986, the Corporation got the factory sealed and the workers were forcibly evicted from the factory. This arbitrary action of the Corporation was criticised by all Government agencies and officers in (written) letter which are on record. They are: IRBIs letter dated 30th June, 1987, Canara Banks letters dated 14th, 16th and 17th June, 1986; letter dated 28th June, 1986 of the Commissioner, Rehabilitation Division and the letter dated 30th June, 1986 of the Additional Director of Industries. The Corporation, however, did not consider the advice given by these institutions and instead wrote to the Companys customers asking them not to pay the dues of the Companys bills and not to return the Companys empty cylinders (about 1000 of the value of about Rs. 20 lakhs). The said cylinders are now not traceable with the lapse of time.It was in these circumstances that the Company was forced to file the writ petition in the High Court on 1st August, 1986. The High Court had, by its impugned judgment, found that the action of the Corporation was very arbitrary and had directed it to restore the possession to the Company forthwith. It had also directed the IRBI to prepare rehabilitation package within four months of the restoration of the possession.At the time the Corporation sealed the unit viz., on 13th June, 1986, according to the Company, the value of its assets was about Rs. 96 lakhs. This valuation had been done at the instance of the Corporation by a registered valuer in the later part of 1985. Under the Rehabilitation Package proposed by the Corporation, the Company was liable to pay to it the principal amount of Rs. 30 lakhs and interest on it is deferred instalments from 1987 to 1993 and without any further interest on the said interest amount in easy instalments from 1987 to 1996. In addition, the liabilities of the Canara Bank had already been quantified at Rs. 12.5 lakhs and the Bank had also to recover the said liabilities in easy instalments. Thus, as against the assets of the Company worth Rs. 96 lakhs, the total liabilities of the Company to the Corporation and the Canara Bank together were between Rs. 75 to 80 lakhs and these liabilities were also to be discharged in easy instalments upto 1996. Hence it is the case of the Company that the impugned judgment of the High Court was perfectly justified.However, the Corporation obtained the stay of the said judgment from this Court which has continued from 1987 to this day. The result has been that the plants have continued to remain closed and the interest has continued to accumulate on the dues of the Corporation and the Canara Bank. The plants have, in the meanwhile become almost a junk, and the cylinders worth Rs. 20 lakhs are not traceable. Today, the total value of the assets including land and buildings has come down to Rs. 42 lakhs from Rs. 96 lakhs in 1986. It is, therefore, the contention of the Company before us that the Corporations appeal should be dismissed and the Company should be restored to the same position in which it had been on the date the stay order was obtained in this appeal. It is contended that if the stay order had not been obtained by the Corporation, the Company would have got the possession of the plants in January 1987 in good condition and its liabilities would have been only between Rs. 75 to 80 lakhs. The Company further prays that the interest which has accrued on the dues of the Corporation should be waived and that on the dues of the Canara Bank should be borne by the Corporation. It is further contended by the Company that as per the order of this Court passed on 5th March, 1987, the IRBI has submitted its report on 5th February, 1988 according to which the unit was found viable. In this connection, the following passages from the said report are relied upon by thespite of the undertaking to carry out the repairs, the Corporation did not do so with the result the Company was compelled to file an application for contempt being CMP No. 2715 of 1989. That Contempt Petition is still pending. The Company would, therefore, also be entitled to be compensated for the losses caused to it on account of theof the undertaking given by the Corporation to the Court.No doubt, there is nothing on record to explain certain events, viz., (i) when on 19th October, 1985 the Corporation had issued to the Company a formal letter communicating to it its acceptance of the rehabilitation package and grant of reliefs and concessions set out therein, what impelled the Corporation to issue recovery notice on 9th January, 1986 which was later on stayed by the Corporation itself on 18th January, 1986; (ii) if on 2nd May, 1986, the Corporation had informed thel Committee that it had stayed the recovery proceedings, what impelled the Corporation once again to issue the recovery notice on 13th May, 1986; (iii) if the Corporation itself had agreed by its letter on 19th October, 1985 to reschedule the payment of loan from 1987 to 1996, what impelled it to issue the said recovery notice on 13th May, 1986 when admittedly as per the Corporations offer, the payment of loan and interest from the Company was not due and when the entire matter of the rehabilitation of the Company was under active consideration; (iv) what impelled the Corporation on 13th June, 1986 to seal the unit and write to the customers not to pay the bills and not to return the cylinders of the Company; (v) when on 11th August, 1986, the Corporation had written to the Company agreeing to give it back the possession of the unit and to follow the rehabilitation proposal that would be prepared by the IRBI on the condition that the Directors of the Company would give personal guarantee for the payment of the liabilities and the Company had accepted the terms by it letter of 21st August, 1986 and when the Director of Industries had advised the Corporation on 12th August, 1986 to withdraw the recovery notice, why had the Corporation not handed over the possession of the unit to the Company; (vi) why had the Corporation not taken steps to repair the machines, in spite of the undertaking given to this Court and (vii) why had the Corporation not accepted the report of the IRBI submitted on 5th February, 1988 to this Court when the IRBI was prepared to invest term loan of Rs. 1.9 crores for making the unit marginallyWe are, therefore, of the view that this is not a matter where the High Court should have stepped in and substituted its judgment of the judgment of the Corporation which should be deemed to know its interests better whatever the sympathies the Court had for the prosperity of the Company. In matters commercial, the courts should not risk their judgments for the judgments of the bodies to whom that task is assigned.If the situation was bad on the date of the impugned judgment, it has become worse today. Between 1988 when the IRBI gave its report and this day, the situation has worsened with the further deterioration of the machinery and the spiralling of the liabilities. To grant any indulgence to the Company at this stage will be akin to flogging a dead horse.