(1.) The manner and method of return of the outstanding loan amount of the petitioner to the respondents is the dispute raised in this writ petition.
(2.) The petitioner is a Public Ltd. Company registered under the Companies Act, 1956. It set up cow milk processing plant at Khanapara, Guwahati. It has been granted with a provisional registration as a small scale industry by the Director of Industries, Assam. It has also been issued with the necessary trade license by the Guwahati Municipal Corporation. The petitioner entered into an agreement with the respondent Corporation for availing financial assistance on certain terms and conditions which included finance for plants and machineries on hire purchase system. The total amount of finance assistance amounted to Rs. 48,8,441/- against hire purchase system. The interest was fixed at the rate of 14.5 percent per annum.
(3.) According to the petitioner due different reasons and adverse conditions the plant was not in a position to generate cash flow to make regular payment of the installments. The petitioner submitted an application dated 20.07.03 before the respondent Corporation praying for a moratorium for a minimum period of six months and also for freezing the interest during that period; reduction of rate of interest to promote landing rate; increasing the term of repayment from five years to minimum seven years; laying the withholding of additional sanctioned amount for purchase of necessary equipments and machineries and also for converting the hire purchase agreement to a term loan. In response to the said letter dated 02.10.02, the respondent Corporation communicated its decision by their letter dated 13.11.02 intimating that the authority had considered the request made by the petitioner and thereby granted extension of the first installment by one year subject to the following conditions:-
1) You will pay interest on blocked up capital for the extension period of one year at the agreement rate of interest. 2) The interest on blocked up capital shall be adjusted from the payments already received from you and the shortfall if any, has to be recovered immediately. Surplus, if any, will be credited to hirer's account. 3) Unit will give post dated cheques in lieu of cheques already given in order to have advance cheques for all the revised schedule of installments. 4) The unit will execute a supplementary agreement/amendment to agreement to take care of amendment/extended date of installments. 5) Confirmation of extension of installments dates may also be obtained from the guarantors without effecting guaranty clauses/agreement.
Therefore, you are hereby requested to kindly convey your acceptance to the above conditions to enable to process your case further
(4.) The petitioner was granted moratorium for a period of two months. The petitioner once again by its letter dated 11.06.03 prayed for premature settlement of hire purchase loan on the terms and conditions set out by it in the letter. It prayed for one time settlement of the hire purchase loan on 11.08.03. The respondent Corporation issued a letter to the petitioner quoting its agreed amount of Rs. 50 lakhs as on 31.07.03 towards premature settlement. The contents of the said letter dated 11.08.03 are quoted below: Dear Sir, This has reference to your letter No. Nil dated 03.08.03 on the above subject. In this connection we would like to bring to your kind notice that as per clause no 3(1) of Agreement bound you are not entitled to exercise option of purchasing the machinery supplied to you under hire-purchase scheme before 3 years from the date of delivery. However, after consideration of your facts and problems in associates with your industry, we may place your case before our higher authority to accept the full value at the pre- mature settlement amount of Rs. 50.00 lakhs as on 31.07.03. Please also note that no other consideration is allowed at the time of pre-mature settlement. Thanking you
(5.) The respondent Corporation issued a letter dated 13.08.03 by way of demand notice under section 138 and 142 of the Negotiable Instrument Act making a demand for payment of installment along with the service charge within a period of 15 days with further intimation that on failure on the part of the petitioner, action under provision of the said Act would be initiated. According to the petitioner such demand made by the respondent Corporation is illegal and arbitrary and violative of Article 14, 19 and 21 of the Constitution of India. It was at that stage the writ petition was filed and this Court while admitting the same passed the interim order dated 20.08.03 directing that the checques issued by the petitioner in negotiation of one time settlement shall remain stayed until further order. By filing the writ petition the petitioner has prayed for a direction to the respondents to deal with the petitioner in just and fair manner accepting their demands for one time settlement. It will be pertinent to mention here that as per the agreement of financial assistance the petitioner was required to deposit 20 post dated cheques bearing dates of its respective quarter in which the hire purchase installments shall fall due and become payable. The agreement further provides for making appropriate arrangement by the petitioner for encashment of the cheques on presentation to the banker on due date of every hire purchase installment. This particular clause in the agreement binds the petitioner for prosecution in case of dishonour of checks under section 138 and 142 of the Negotiable Instrument Act.
(6.) In fact, action was initiated against the petitioner by the respondent Corporation invoking the aforesaid provision of the agreement and it was at that stage, on the prayer made by the petitioner, this Court passed an interim order on 08.04.04 providing that the respondent Corporation would not institute any fresh criminal case against the petitioner for dishonour of cheques under the provision of the aforesaid Act.
(7.) The respondent Corporation have entered appearance in the case and have filed their affidavit in opposition. Apart from dealing with the contentions raised in the writ petition on merit, the respondents have also raised preliminary objections as to the maintainability to the writ petition itself. The preliminary objections raised on behalf of the respondents as enumerated in the affidavit in opposition are quoted below:
a) That, the petitioner through its Director applied for Hire Purchase Scheme before the office of the Respondent No. 3 and accordingly, the loan was sanctioned by the Respondents. Thereafter, 7 (seven) nos. of Hire Purchase Agreements were executed between the Petitioner and Respondents for 7 (seven) nos. of machineries in the months of August and September, 2001. Thereafter, the Petitioner and the Respondents are bound by the terms and conditions of the aforesaid agreements and the Petitioner is to pay Hire Purchase Installments as per agreements within stipulated time. The Supreme Court in various decisions has held that when State or other authority within the meaning of Article 12 entered into ordinary contract with private persons, act purely in its executive capacity. Thereafter the relations are no longer governed by the constitutional provisions but by the contract, which determines the rights and obligations conferred upon them by the contract. Where the contract entered into between the State and the person aggrieved is non-statutory and purely contractual and the rights are governed only by the terms of the contract, no writ or order can be issued under Article 226 of the Constitution of India. In the instant case the petitioner is not entitled to seek redress under the Article 226 of the Constitution of India and as such the writ petition is liable to be dismissed in limine. b) That, the Respondent NO. 1 is a financial company providing financial assistance to the genuine and needy entrepreneurs. Admittedly, the petitioner is defaulted in making payment of the Hire Purchase Installments which the stipulated time and there are overdue amounting to Rs. 9,93,234/- as on 31.03.04. In the instant case the petitioner is only interested in delaying the repayment of the dues and has abused the process of the Court taking indulgence of the Court's Orders. No indulgence would be shown to such a recalcitrant defaulter in repayment of the loan. Public money is meant to be recycled to all the needy entrepreneurs. The dilatory tactics defeat the public policy and the Court process becomes an instrument of abuse. The Court would protect only honest and sincere litigants. If the present writ petition is entertained by the Hon'ble Court other similarly situated defaulters will also approach the Court and in that event the functioning of the Respondent Company will be jeopardized and the same will defeat the public policy. The petitioner being a defaulter may not be protected by the Hon'ble Court and the writ petition is liable to be dismissed with cost. c) That, the conduct of the petitioner is also not benafide. The prayer of the petitioner in the writ petition is to direct the Respondents to enter into one time settlement as prayed by the petitioner. The Respondents cannot go beyond the policy and settle the hire purchase loan in Petitioner's term. It is pertinent to mention herein that as per agreements entered into between the petitioner and respondents, the hire purchase loan cannot be settle for a period of 3 years from the date of delivery of the machineries. However, on being approached by the petitioner, the respondent No. 3 vide letter dated 11.08.03 made an offer to the petitioner for premature settlement amount of Rs. 50 lakh as on 31.07.03. But the petitioner did not respond to it and filed the instant writ petition. The petitioner also filed a Misc. case No. 65/2004 for clarification/correction of the order dated 28.08.2003 passed in W.P.(C) No. 6798/2003 with a prayer not to place blank cheque earlier issued by the petitioner and to come forward with one time settlement. The Hon'ble Court after hearing the counsel for the parties pleased to pass an order 27.01.04 in the Misc. Case directing the respondent Corporation to apprise the Court of the outstanding dues as on 16.02.04 and fixed the Misc. Case on 16.02.04 for final order. Accordingly, as per order dated 27.01.04, the respondents filed an affidavit showing the overdue of the petitioner of Rs. 10,80,348/- as on 16.02.04 and future dues of Rs. 42,33,435/- as on 16.02.04 and for one time settlement the petitioner is to pay Rs. 53,13,783/- as on 16.02.04. The matter was listed on 17.02.04, but there was no representation when the matter was called for. Thereafter, the petitioner filed another Misc. Case No. 1146/2004 praying for a direction to the respondents not to present any blank cheques by filing arbitrary amount during pendency of the writ petition and to come forward for one time settlement. It is interesting to note that though prayer made in both the Misc. Cases are almost similar, there are not a whisper in the later Misc. Case about the filing/pendency of the earlier Misc. Case. The Hon'ble vide order dated 08.04.04 fixed the writ petition for hearing on 03.05.04 giving liberty to the parties to make one time settlement of their dispute within 03.05.04. But till filing of this affidavit the petitioner did not approach the office of the respondents for one time settlement. Thereafter, it is clear that the petitioner has no intention to go for one time settlement. The petitioner is only interested in delaying the repayment of the dues and as such has abused the process of the Court taking indulgence of the Court's orders. It is pertinent to mention herein that as per Clause 2 (ii) (e) of the agreements, the hirer in order to ensure performance on his part of hire purchase agreement has to deposit 20 post dated cheques bearing dates of each respective quarter on which the Hire Purchase installment shall fall due and become payable. If the said cheques are not presented within validity period the respondent Corporation will suffer irreparable loss and injury. Thereafter, the instant writ petition may not be entertained by the Hon'ble Court and the same is liable to be dismissed with cost. d) That, the agreements were executed between the petitioner and the respondents in the months of August and September, 2001. But the petitioner has chosen to file the writ petition in the year 2003 at a belated stage, when the petitioner has defaulted in making payment of the installments. If at all there are any valid grievances, the petitioner should have moved the Court at the earliest possible opportunity and as such belated petition sho0uld not be entertained. In a contractual sphere such delay is fatal. Therefore, the writ petition is liable to be dismissed with cost on the ground of delay and latches.
(8.) The stand of the respondents in their affidavit inter alia is that as per proviso of clause 3 (i) of the agreement the hire purchase loan cannot be settled for a period of three years from the date of delivery of machineries and that respondents cannot go beyond the policy and settle the hire purchase loan in petitioner's term. According to them, the price quoted by the petitioner for premature settlement of hire purchase loan is not acceptable. Their stand in the affidavit is that the petitioner having entered into agreement with the respondent Corporation in acceptance of terms and condition incorporated therein, cannot resile back from those terms and conditions and invoke the writ jurisdiction of this Court. They have further highlighted as to how the cheques were bounced justifying their action under the provisions of Negotiable Instrument Act.
(9.) The petitioner has also filed a rejoinder to the affidavit in opposition disputing the claims of the respondents. The basic thrust in the affidavit in reply as in the writ petition is that the respondent Corporation should agree to the proposal made by the petitioner for one time settlement.
(10.) I have heard Mr. A.M. Majumdar, learned Senior counsel for the petitioner and Mr. J. Deka , learned counsel for the respondents.
(11.) Mr. Majumdar submitted that the respondent Corporation instead of playing offensive against the petitioner ought to have responded to the offer made by it positively for one time settlement. Referring to the cases registered against the petitioner under the provisions of the aforesaid Act, Mr. Majumdar submitted that such a course of action has been adopted by the respondent Corporation as coercive measure unmindful of on going process for amicable settlement of the matter.
(12.) Mr. J. Deka, learned counsel for the respondent Corporation in his persuasive pursuits apart from raising his preliminary objection as enumerated above, also reiterated the stand in the affidavit as regards the merit of the case. He placed reliance on the following decisions to strengthen his argument. 1)(1989) 2 SCC 116 (Bareilly Development Authority vs. Ajai Pal Singh) 2)(2003) 7 SCC 410 (National Highways Authority of India vs. Ganga Enterprises) 3)(2000) 6 SCC 293 (Kerela State Electricity Board vs. Kurien E. Kalathil) 4)(1993) 6 SCC 22 (State of U.P. vs. Bridge and Roof Company) 5)(1996) 5 SCC 357 (Orissa State Finance Corporation vs. Hotel Jogendra)
(13.) The facts are not in dispute. The respondents in response to the letter dated 27.01.04 passed in Miscellaneous Case No. 65/04 filed by the petitioner has apprised the position relating to the dues payable by the petitioner. As per the affidavit the total overdues of hire purchase loan account of the petitioner as on 16.02.04 stood at Rs. 10,80,348/-. The total future dues of hire purchase loan account of the petitioner as on 16.02.04 stood at Rs. 42,33,435/-. According to the affidavit, to settle the hire purchase loan amount of the petitioner as on 16.02.04, the petitioner had to pay a total amount of Rs. 53,13,783/-. The break up of the said overdues and future dues has been indicated in Annexure-A to the Affidavit.
(14.) The petitioner entered into an agreement with the respondent Corporation and executed 7 Nos. of hire purchase agreements. It is needless to say that the petitioner and the respondents are bound by the terms and conditions enumerated therein. The petitioner is required to pay hire purchase installments within the stipulated time. It is on record that the petitioner defaulted in making payment of hire purchase installments within the stipulated time and there were overdues as indicated above. The petitioner prayed for one time settlement to which the respondents had responded by laying down their terms. However, the petitioner in stead of responding to the same, approached this Court by filing the instant writ petition. It is needless to say that the respondents cannot go beyond the policy of settlement of hire purchase loan in petitioner's term. As per the agreement entered into by the petitioner and the respondents, the hire purchase loan cannot be settled for a period of three years from the date of delivery of the machineries. It is the case of the respondents in reference to the averments made in paragraphs (2) (c) of the affidavit in opposition that the petitioner has no intention to go for one time settlement and has adopted delaying tactics by taking recourse to writ proceeding.
(15.) As per clause (2) (ii) (e) of the agreement, the hirer in order to ensure performance on his part of hire purchase agreement has to deposit 20 post dated cheques bearing dates of each respective quarter on which the hire purchase installments shall fall due and become payable. If the cheques are not presented within the valid period, the respondent Corporation are bound to suffer loss. The respondents presented the cheques as and when the installments had fallen due putting the due amount as per calculation. When the cheques were dishonoured by the banker, a notice dated 13.08.03 was issued as per the provisions of the Negotiable Instrument Act. But the petitioner did not make payment of cheques amount or amount of hire purchase installments which had fallen due. The claim of the petitioner for one time settlement will not absolve it from its liability to pay the hire purchase installments within the stipulated time. The respondent Corporation had also granted extension of first installment by one year subject to certain conditions which the petitioner dully accepted.
(16.) As regards the aforesaid 20 post dated cheques deposited by the petitioner to the respondent Corporation as per the terms and conditions of the agreement it undertook to honour the cheques. Accordingly, the respondents presented the cheques when the installments had fallen due, but as shown in paragraph 25 of the affidavit in opposition such cheques were dishonoured. The respondents had no other option than to file complaint cases in accordance with the provisions of Negotiable Instrument Act.
(17.) It is in the above backdrop the learned counsel for the respondent Corporation has relied on aforementioned decisions. In the case of Bareilly Development Authority (supra) the Apex Court held that when the State or other authority within the meaning of Article 12 of the Constitution of India enters into ordinary contract with private persons, parties are governed by the terms of the contract and that the aggrieved party is not entitled to seek redress under Article 226 for breach of contract. In that case the Apex Court observed as follows:
20. Thus the factual position in this case clearly and unambiguously reveals that the respondents after voluntarily accepting the conditions imposed by the BDA have entered into the realm of concluded contract pure and simple with the BDA and hence the respondents can only claim the right conferred upon them by the said contract and are bound by the terms of the contract unless some statute steps in and confers some special statutory obligations on the part of the BDA in the contractual field. In the case before us, the contract between the respondents and the BDA does not contain any statutory terms and/or conditions. When the factual position is o, the High Court placing reliance on the decision in Ramana Dayaram Shetty case has erroneously held: It has not been disputed that the contesting opposite party is included within the term other authority mentioned under Article 12 of the Constitution. Therefore, the contesting opposite parties cannot be permitted to act arbitrarily with the principle which meets the test of reason and relevance. Where an authority appears acting unreasonably this Court is not powerless and a writ of mandamus can be issued for performing its duty free from arbitrariness or unreasonableness. 21. This finding, in our view, is not correct in the light of the facts and circumstances of this case because in Ramana Dayaram Shetty case there was no concluded contract as in this case. Even conceding that the BDA has the trappings of a State or would be comprehended in other authority for the purpose of Article 12 of the Constitution, which determining price of the houses/flats constructed by it and the rate of monthly installments to be paid, the authority or its agent after entering into the field of ordinary contract acts purely in its executive capacity. Thereafter the relations are no longer governed by the constitutional provisions but by the legally valid contract which determines the rights and obligations of the parties inter se. in this sphere, they can only claim rights conferred upon them by the contract in the absence of any statutory obligations on the part of the authority (i.e. BDA in this case) in the aforesaid contractual field. 22. There is a line of decisions where the contract entered into between the State and the persons aggrieved is no-statutory and purely contractual and the rights are governed only by the terms of the contract, no writ or order can be issued under Article 226 of the Constitution of India so as to compel the authorities to remedy a breach of contract pure and simple- Radhakrishna Agarwal v. State of Bihar, Premji Bhai Parmar v. Delhi Development Authority and DFO v. Biswanath Tea Company Ltd. 23. In view of the authoritative judicial pronouncements of this Court in the series of cases dealing with the scope of interference of a High Court while exercising its writ jurisdiction under Article 226 of the Constitution of India in cases of non-statutory concluded contracts like the one in hand, we are constrained to hold that the High Court in the present case has gone wrong in its finding that there is arbitrariness and unreasonableness on the part of the appellants herein in increasing the const of the houses/flats and the rate of monthly installments and giving directions in the writ petitions as prayed for.
(18.) In the case of Hotel Jogendra (supra) the Apex Court noted how the respondent loanee was only interested in delaying the repayment of the dues and abused the process taking indulgence of Court's direction. The Apex Court observed that no indulgence could be shown to such a recalcitrant defaulter in repayment of the loan and that public money is meant to reconcile all needy entrepreneurs. It went on to observe that delatory tactics defeat public policy and the Court's process becomes the instrument of abuse.
(19.) In the case of Bridge and Roof Company (supra) the Apex Court under similar circumstances held the writ petition to be not maintainable. The vary remedy adopted by the respondents therein was held to be misconceived. The Apex Court observed that the contract between the parties being in the realm of private law and being not a statutory contract, it was governed by the provisions of the Contract Act. It held that any dispute relating to the terms and conditions of such contract cannot be agitated and could not have been agitated in the writ petition.
(20.) In the case of Kerala State Electricity Board (supra) also the same view has been expressed by the Apex Court. The Apex Court observed as follows:
10. We find that there is a merit in the first contention of Mr. Raval. Learned counsel has rightly questioned the maintainability of the writ petition. The interpretation and implementation of a clause in a contract cannot be the subject matter of a writ petition. Whether the contract envisages actual payment or not is a question of construction of contract. If a term of a contract is violated, ordinarily the remedy is not the writ petition under Article 226. We are also unable to agree with the observations of the High Court that the contractor was seeking enforcement of a statutory contract. A contract would not become statutory simply because it is for construction of a public utility and it has been awarded by a statutory body. We are also unable to agree with the observation of the High Court that since the obligations imposed by the contract on the contracting parties come within the purview of the Contract Act, that would not make the contract statutory. Clearly, the High Court fell into an error in coming to the conclusion that the contract in que question was statutory in nature. 11. A statue may expressly or impliedly confer power on a statutory body to enter into contracts in order to enable it to discharge its functions. Dispute arising out of the terms of such contracts or alleged breaches have to be settled by the ordinary principles of law of contract. The fact that one of the parties to the agreement is a statutory or public body will not by itself affect the principles to be applied. The disputes about the meaning of a covenant in a contract or its enforceability have to be determined accordingly to the usual principles of the Contract Act. Every act of a statutory body need not necessarily involve an exercise of statutory power. Statutory bodies, like private parties, have power to contract or deal with property. Such activities may not raise any issue of public law. In the present case, it has not been shown how the contract is statutory. The contract between the parties is in the realm of private law. It is not a statutory contract. The disputes relating to interpretation of the terms and conditions of such a contract could not have been agitated in a petition under Article 226 of the Constitution if India. That is a matter for adjudication by a civil court or in arbitration if provided for in the contract. Whether any amount is due and if so, how much and refusal of the appellant to pay it is justified or not, are not the matters which could have been agitated and decided in a writ petition. The contractor should have relegated to other remedies.
(21.) In the case of National Highways Authority of India (supra) the Apex Court held it to be a settled law that dispute relating to contracts cannot be agitated under Article 226 of the Constitution of India. It emphasized that any writ petition involving contractual disputes and also the question of maintainability of the petition, the question of maintainability ought to be decided first as the question of m
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aintainability is the foremost consideration holding that the High court fell in error in that case in allowing the writ petition. The Apex Court set aside the judgment of the High Court and dismissed the writ petition. (22.) All the aforesaid cases have been relied upon on behalf of the respondent Corporation in tune with the preliminary objections raised by the respondent Corporation in their affidavit in opposition as quoted above. The petitioner having entered into hire purchase agreement with the respondent Corporation binding themselves with the terms and conditions formulated therein cannot resile back from those terms and conditions on the plea of its proposal for one time settlement. It is on record that the respondent Corporation responded to the proposal and made a counter offer. However, the petitioner instead of making their position known to the respondent Corporation resorted to litigation by filing the instant writ petition and obtained some interim orders on the basis of which the action initiated by the respondent Corporation as per the terms and conditions of the agreement have been made standstill. In the process the respondent Corporation is deprived of its dues receivable from the petitioner. (2 3.) The preliminary objections raised on behalf of the respondent Corporation merit consideration and once the preliminary objections raised are accepted, nothing survives in the writ petition. In fact, the dispute raised in the writ petition centres around the preliminary objections raised on behalf of the respondent Corporation. It is in the context of the said objections, the aforementioned decisions of the Apex Court have been referred to which clearly supports the case of the respondent Corporation. During the course of hearing the learned counsel for the petitioner submitted that the only dispute between the petitioner and the respondent Corporation is in respect of the quantum to be fixed for one time settlement. If that be so, it is not understood as to why the petitioner did not respond to the counter offer made by the respondent Corporation and instead rushed to the Court by filing the instant writ petition. It is not for the writ Court to exercise its power of judicial review under Article 226 of the Constitution of India to resolve such dispute. It is also not for the writ Court to enter into such contractual matter. The petitioner is bound by the terms and conditions enumerated in the hire purchase agreements and any deviation made by it will entitle the respondent Corporation to take consequential action as provided for under the said terms and conditions. In such a situation it will not be appropriate for the writ Court to give any indulgence to the party in default. (24.) For the forgoing reasons, I do not find any infirmity in the action of the respondent Corporation and consequently the prayers made in the writ petition can not be granted. Accordingly, the writ petition stands dismissed (25.) There shall be no order as to costs.