Shakeel Ahmad Khan v. Fraser Road, Patna

complete, with the consent of the parties, the matter is being disposed of at this stage itself. From the facts stated above, it is apparent that petitioner had well within time liquidated more than 75% of its liability under OTS Scheme, 2006. He fell ill with Hepatitis B. He then prayed for extension on payment of interest which was rejected. The balance was only about Rs. 64,000/- that was left to be paid for full and final settlement but for failing to pay about Rs. 64,000/-, petitioner is now being made liable to pay and account for over Rs. 25 lacs. Thus penalty for a default in failure to pay Rs. 64,000/- is Rs. over Rs. 25 lacs. This in my view, leads to a very inequitous situation. More so if we consider that in several cases, B.S.F.C. itself had granted time extension even though as per itself, there was no such provision in its own policy. Suffice to say that the B.S.F.C. being the author of the policy, nothing prevented it from relaxing the same. They did relax it in respect of several people. 4 I see no reason why it can not be or could not be relaxed in case of the petitioner. Here consequences are as grave as those noticed above. To the contention that petitioner’s case was not a deserving case, again the same is to be repeated that if accommodation as sought for is not granted the consequences are grave. The petitioner was ready and willing to liquidate his liability under OTS Scheme,

2006. The effort of petitioner to get out of his liability was bonafide and genuine. As held by the Apex Court in the case of Haryana Financial Corporation versus Jagdamba Oil Mills since reported in 2002(3) SCC 496 and position noticed and affirmed in the case of S.J.S. Business Enterprises Private Limited versus the State of Bihar and others since reported in 2004(7) SCC 166 of which I may refer to paragraph 23 (of the later judgment) which is quoted hereinunder. In Jagdamba Oil Mills It was observed (at SCC P. 507, Para 15) that the Court may “assist the borrower who has intention to repay, but is prevented by insurmountable difficulties in meeting the commitments”. The borrower in that case had made no payment whatsoever to State Financial Corporation of its outstanding loan. As not 5 even a minimal portion of the amount borrowed had been paid the Court refused to help the defaulter. The borrower, in this case had paid over Rs. 14 lakhs as against the principal amount of Rs. 44.56 lakhs. A further amount of Rs. 10 lakhs was paid on

27.03.2002 by the appellant to BICICO i.e. the day after the impugned sale notice was published. Before the High Court a sum of Rs. 10 lakhs was paid pursuant to the interim order. In addition, the appellant had approached BICICO to settle its outstanding dues under the one-time settlement policy. As we have already recorded, we entertained the special petition on condition that the appellant would deposit a sum of Rs. 1 crore over and above the amount already paid by it to BICICO. This the appellant has also done. All this shows that the appellant could not termed to be such a defaulter who deserved no sympathy or assistance by the Court. The Court should come in aid to persons who are genuinely interested in liquidating their liabilities but for some reason or the other are unable to do so. 6 In that view of the matter, I direct that on petitioner depositing the balance outstanding under OTS Scheme, 2006 which was due final on 05.01.2008 along with simple interest at the contractual rate of interest within a period of two months, the Corporation would not auction petitioner’s bakery and deprive the petitioner on his bread and butter. If the petitioner on being intimated the amount due as aforesaid pays the total amount within two months from that day, BSFC would deem it to be full and final settlement under OTS Scheme, 2006 and close the account and return the documents of title, if any, submitted by the petitioner as a security for the loan concerned. No action would then lie in terms of section 29 of the BSFC Act. The writ application is disposed of with the aforesaid observations and directions. Shageer (Navaniti Prasad Singh, J)