WRIT PETITION 9364 of 2013 on 23 May 1991

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CMP No. 1945 and 1946 of 2015 in CWP No. 9364 of 2013.

Reserved on: 29th July, 2015.

Date of Decision : 6 th August, 2015.

Sohan Lal

…..Petitioner.

Versus

Himachal Pradesh Financial Coroporation & others

…..Respondents.

Coram

The Hon’ble Mr. Justice Rajiv Sharma, Judge. The Hon’ble Mr. Justice Sureshwar Thakur, Judge.

Whether approved for reporting?

For the Petitioner: For the respondents:

Ms. Seema Guleria, Advocate. Mr. N.D. Sharma, Advocate.

_____________________________________________________

Sureshwar Thakur, Judge

Through this writ petition, the petitioner claims theaffording of in his favour the hereinafter extracted reliefs:- “(i) That the writ in the nature of certiorari may kindly beissued quashing the order of arrest of the petitioner as contained in warrant of arrest dated 04.09.2013(AnnexureP-15).

(ii) That the writ in the nature of mandamus may kindly beissued directing the respondents to settle the matter on thebasis of One Time Settlement as per notice dated22.11.2011 keeping in view the financial as well as old ageof the petitioner in consideration.”

2. The petitioner on 23.05.1991 had obtained transport loanin the sum of Rs.2,72,288/- from the respondents. Given the domesticconstraints which beset the petitioner to repay the loan installments tothe respondents sequelled the loan liability of the petitioner towardsthe respondents to escalate to an astronomical scale of Rs.54 lacs. Thepetitioner had concerted to obtain the benefit, from the respondentcorporation, of a One Time Settlement of his loan liability towards it.However, the proposal proffered by the petitioner to the respondents toobtain or secure a one time settlement of his loan liability towards thelatter was as communicated in Annexure A-2, declined by therespondents on the score of the petitioner having offered a minimalamount of Rs. 5 lacs for writing off his outstanding loan liabilitytowards the respondents constituted in the sum of Rs.54 lacs. Theaction of the respondent corporation in not accepting the offer madeby the petitioner to the respondents for securing from it a One TimeSettlement for liquidation of his loan liability towards it, cannot be construed to be ridden with the vice of caprice, malafides orarbitrariness nor also hence it would be apt to infer that the demand asmade by the respondents from the petitioner is untenable. More so,when no tangible material, both potent as well as vigorous has beenplaced on record by the petitioner for evincing a finding from thisCourt that the petitioner has not committed default in defraying a sumof Rs.54 lacs to the respondents. Consequently, the decision arrived atby the respondents in rejecting the proposal made by the petitioner forsecuring from it a one time settlement for liquidation of his loanliability towards it, is ingrained with a legal formidability. When thepetitioner has not contested the factum of his having committeddefault in repaying to the respondent a sum of Rs.54 lacs towardsclearance of his loan liability fortifyingly fosters a conclusion that thedemand in the aforesaid sum by the respondent corporation wasembedded upon a firm legal pedestal. This Court on 18.10.2014 haddisposed of the petition by passing the following orders:- “Case of the petitioner in nutshell is that on intervention of thisCourt, final settlement has now been arrived at in between theparties. However, the petitioner has not been issued NOC.Accordingly, the respondents are directed to issue NOC within aperiod of one week from today.”

However, thereafter both the petitioner as well as the respondents havefiled CMP Nos.1945 and 1946 of 2015, respectively for modificationof the orders rendered on 18.10.2014 as no one time settlement hadever been arrived inter se the parties. In face thereof and in face of thehereinabove discussion portraying the factum of the petitioner havingnot repaid the loan amount to the respondent corporation, anycompliance with the peremptory directions aforesaid making itincumbent upon the respondent-Corporation to issue NOC in favourof the petitioner cannot hence be insisted upon. Besides, this Courtduring the course of listing of the petition before it had madeconcerted endeavours to facilitate the respondents to, by proceeding tosell the mortgaged assets of the petitioner, realise the amount of loanobtained or borrowed by him from the respondents. The endeavoursof this Court did not bear fruition. The mortgaged assets of thepetitioner as put to sale by auction after giving wide publicity to theauction notice in newspapers as well as by pasting it on the noticeboards of the Office of D.C., Tehsil Office and Gram Panchayat Officesequelled a highest bid of Rs.6.85 lacs only being offered. The bid ofRs.6.85 lacs as offered by the highest bidder for purchasing themortgaged assets of the petitioner is grossly disproportionate besides blatantly minimal, vis-à-vis the loan liability of the petitioner towardsthe respondents. Any direction by this Court to the respondentcorporation to accept the bid of Rs.6.85 lacs offered by the highestbidder for purchasing the mortgaged assets of the petitioner wouldobviously not empower the respondent corporation to recover its duesfrom the petitioner. Consequently, this Court does not deem it fit torender a direction to the respondent to accept the bid offered by thehighest bidder in the auction held on 23.07.2015 for sale of themortgaged assets of the petitioner. As a corollary then it is left open tothe respondent corporation to recover its outstanding loan liabilityfrom the petitioner in any mode or manner as it deems fit or expedient.Nonetheless, when the respondent corporation in CMP No.1946 of2015 has ventilated therein a proposal to this Court that in case thepetitioner proffers a more viable offer than the one previously madefor a one time settlement to the respondent, then it can be placed againbefore the Board of Directors for consideration. Accordingly, in viewof the proposal ventilated by the respondent-corporation in CMPNo.1946 of 2015, this Court deems it fit and proper to direct thepetitioner to make a more viable offer to the respondent corporationfor a one time settlement than the one previously made and rejected by it. The said offer for a one time settlement be communicated by the petitioner to the respondent corporation within two weeks from today.On receiving an offer of a one time settlement from the petitioner, therespondent-corporation shall proceed to render a decision thereuponwithin three weeks thereafter. In case, the respondent-corporationrenders an adjudication adverse to the petitioner, then it is left open tothe respondent corporation to recover the loan amount from thepetitioner, in accordance with law. In face of the herein-abovediscussion, both the applications stand disposed of accordingly. Othermiscellaneous application(s), if any, also stand disposed of.

(Rajiv Sharma) Judge

6 thAugust, 2015 (jai)

(Sureshwar Thakur) Judge