Gujarat High Court
Alpesh Ice Factory vs Gujarat State Financial Corporation on 22 July, 2015
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/3520/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 3520 of 2015
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ALPESH ICE FACTORY....Petitioner(s)
Versus
GUJARAT STATE FINANCIAL CORPORATION...Respondent(s)
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Appearance:
MR NIRZAR S DESAI, ADVOCATE for Petitioner(s) No. 1
MR AS ASTHAVADI, ADVOCATE for Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 22/07/2015
ORAL ORDER
(1) By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:
"(A) YOUR LORDSHIPS may be pleased to admit and allow this petition.
(B) YOUR LORDSHIPS may be pleased to issue writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondentCorporation to give the clearcut calculation of the amount due and payable by the petitioner; and further be pleased to direct the respondentCorporation to accept the said dues of the petitioner and to handover the possession of the unitAlpesh Ice Factory haing its address at Village Delvada, Taluka : Una, Dist. Junagadh to the petitioner.
(C) Pending hearing and final disposal of this petition, YOUR LORDSHIPS may be pleased to direct the respondentCorporation to maintain statusquo qua the property in question being Alpesh Ice Factory haing its address at Village Delvada, Taluka : Una, Dist.
Junagadh, which is owned by the petitioner and mortgaged to the respondentCompany.
(D) YOUR LORDSHIPS may be pleased to grant any other and further reliefs as may be deemed fit and proper in the interest of justice."
Page 1 of 7 C/SCA/3520/2015 ORDER(2) Learned advocate for the petitioner has taken this Court through the factual matrix arising out of this petition.
(3) The facts which emerge from the record of the petition are as under:
2.1 That the petitioner set up a unit in the name of Alpesh Ice Factory at Village Devlvada, Tal. Una, Dist. Junagadh, in the year 1999. That the respondentCorporation gave financial facility to the petitioner to the tune of Rs.7,71,000/ and in fact disbursed the amount of Rs.7,62,000/ on 12.02.1990. It is the case of the petitioner that as per the repayment schedule, the petitioner repaid the entire loan by August, 1996, by way of quarterly installments of Rs.30,480/.
2.2 It is the case of the petitioner that the respondentCorporation credited the said amount to a wrong account and therefore the petitioner was served with a show cause notice dated 09.07.1991, which was replied to by the petitioner and after hearing, possession of the unit viz. Alkesh Ice Factory was taken over by the respondentCorporation.
Page 2 of 7 C/SCA/3520/2015 ORDER2.3 It is the case of the petitioner that the petitioner has paid an amount of Rs.7,11,977/ to the the respondent Corporation still, however, the actions are taken. It is also a matter of record that the petitioner approached Civil Court at Veraval by way of Regular Civil Suit No.42 of 1995 against the respondent Corporation. Record also indicates that the petitioner had also filed criminal proceedings by way of F.I.R., which came to be registered on 29.11.1995 as M. Case No.38/95, with Veraval Police Station. That the litigation between the parties culminated into an order of this Court dated 13.11.1995 passed in Appeal from Order No.361 of 1995. Record also indicates that the petitioner had also filed Civil Revision Application No.116 of 1997 before this Court, which came to be disposed of vide order dated 09.01.1998 on the settlement arrived at between the petitioner and the respondentCorporation and an amount of Rs.1,00,000/ was deposited by the petitioner before the trial Court. That accordingly possession of the unit in question was again given back to the petitioner and thereafter the Page 3 of 7 C/SCA/3520/2015 ORDER aforesaid Regular Civil Suit No.42 of 1995, instituted by the petitioner, was also withdrawn.
2.4 It is further the case of the petitioner that in the year 2002 the respondent Corporation again took possession of the unit of the petitioner and also raised further demand of Rs.11,93,028/ by communication dated 03.12.2002. It is the case of the petitioner that thereafter the unit of the petitioner was sold and in fact the respondentCorporation has entered into a registered sale deed with one M/s.Radhika Corporation. That by communication dated 14.07.2014 the petitioner again requested the respondentCorporation that the petitioner are ready and willing to settle the dues of the respondentCorporation, if they give possession of the unit to the petitioner back. That in response thereto communication dated 13.11.2014 was addressed by the respondentCorporation to the petitioner, which indicates that amount of Rs.30,767/ is due and payable by the petitioner. Hence as nothing was done, the the present petition is preferred, praying the aforesaid reliefs.
Page 4 of 7 C/SCA/3520/2015 ORDER(4) Mr.Nirzar S. Desai, learned advocate for the petitioner, has reiterated the grounds which are stated in the petition as observed hereinabove.
(5) Per contra, Mr.A.S.Asthavadi, learned advocate for the respondentCorporation, has submitted at the outset that the aforesaid communication dated 13.11.2014 is misread by the petitioner. It is also pointed out that while availing the financial facility given by the respondent Company the petitioner has entered into a personal security bond and what is stated in the communication dated 13.11.2014 pertains to the personal bond and not the the transaction. Relying upon the affidavitinreply filed by the respondent Corporation, learned advocate for the respondentCorporation contended that the property in question is sold way back in the year 2003, after due process of law as contemplated under Section 29 of the State Financial Corporation Act, 1951, by a public auction and possession of the unit is handed over to the purchaser on 30.07.2003 and even a sale deed is executed and registered on 10.03.2008. It is further Page 5 of 7 C/SCA/3520/2015 ORDER submitted that after lapse of 10 years the present petition is filed raising the issue of giving back possession. It is contended that the petitioner has not acted as per the settlement arrived at between the parties before this Court and even such issue cannot be raised after lapse of 10 years. Relying upon Paragraph Nos.1516 of affidavitinreply, it is contended that as such a sum of Rs.9,30,192/ is still due and payable from the petitioner as well as its guarantors and in order to see that the petitioner can take advantage of Residual Recovery Settlement Scheme of the respondentCorporation, communication dated 13.11.2014 was written.
No other and further submissions are made by the learned counsel appearing for the respective parties.
(6) Considering the submissions made by both sides and on perusal of the documents as well as the affidavitinreply of the respondentCorporation it is an admitted position that possession was taken over from the petitioner long back and the unit in question has been sold in the year 2003.
Page 6 of 7 C/SCA/3520/2015 ORDERIt is not believable that the petitioner, who is a locally situated at Village Delvada, is unaware about such transaction, which has been done after following due process of law under Section 29 of the State Financial Corporation Act, 1951. It appears that the sale has taken place in the year 2003 by a public advertisement and the petitioner therefore had constructive knowledge of the same.
(7) Learned advocate for the respondent Corporation has rightly contended that communication dated 13.11.2014 is misread and the same pertains to an outstanding amount of Rs.9,30,192/, which is still outstanding in the account of the petitioner. In view of the aforesaid facts, the petitioner is not entitled for any of the reliefs prayed for in the present petition. Cumulatively, the petition is misconceived and the same is dismissed. NOTICE discharged. No costs.
Sd/ [R.M.CHHAYA, J ] *** Bhavesh [pps]* Page 7 of 7