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2017 Supreme(Pat) 1604
IN THE HIGH COURT OF JUDICATURE AT PATNA
Hon'ble ANJANA MISHRA, J.
M/s Pine Builders Private Limited & Anr.
Versus
Bihar State Credit and Investment Corporation Limited & Anr.
CWJC No.11381 of 2011. Decided on 16th October, 2017.
M/s Kamal Nayan Choubey, Ajay Kumar Singh, Raj Kumar, Rajnish Kumar, Vijay Kumar, For the Petitioners; M/s Anjani Kumar, Nirmal Kumar, Latesh, For Respondent-BICICO.
Headnote:
Indian Evidence Act, 1872 – Section 115 – Estoppel – ''Doctrine of election by conduct" comes into play when party could have raised his grievance but did not raise at that point of time, then subsequently he cannot approbate and reprobate, rather he will be precluded from taking such stand – In instant case, respondent-Corporation took benefit of four party agreement for sale and accepted money to the tune of Rs.85 lacs and enjoyed the same – Their action now, after 8-9 years, for returning money cannot sustain as they cannot be permitted to take the stand that transaction was not valid, more particularly when contract stood concluded – Principle of estoppel by election will come into play against them because they have opted not to raise such objection for such a long time – Petitioners could not be penalized and BICICO having enjoyed and availed Rs.85 lacs for a period of almost six years from date of its deposit could not make a volte face and reject plea of petitioners for registering sale deed by merely stating that agreement lacked sanction from Board of Directors – Respondents directed to execute sale deed in favour of petitioners in furtherance of Agreement. (Paras 41 to 47)
Anjana Mishra, J. – In the present writ application, the petitioners have invoked the extraordinary jurisdiction of this Court, seeking a writ of certiorari by which a challenge has been placed to the letter dated 10.06.2011,vide Ref. No.Recov/U/77/81-88/278, (Annexure 8), issued by the Managing Director of the respondent-Corporation to the Director of M/s Pine Builders Private Limited, communicating the decision of the Board of Directors of the Bihar State Credit and Investment Corporation Limited, to hand over the assets of M/s Neeraj Newspapers Associates Private Limited to BICICO, so as to make the same available for its auction through advertisement.
The further prayer of the petitioner is to quash the letter dated 07.07.2011 (Annexure 9) by which the petitioners were directed to hand over the assets to the BICICO within seven days, failing which legal action would be taken against them.
The petitioners have also sought to challenge the decision taken by the Board of Directors in its meeting dated 30.05.2011, pursuant to which the letter dated 10.06.2011 had been issued, resolving that a sum of Rs.85 lacs as received from M/s Pine Builders Private Limited be refunded to them and the assets of M/S Neeraj Newspapers Associates Private Limited may be auctioned through advertisement.
2. A brief sketch of the facts giving rise to the present application can be detailed hereunder as follows: –
(i) The petitioner is a registered Company with the petitioner no.1 as the Director of the Company. They are reputed Builders in the State of Bihar and are engaged in designing, construction and consultancy, having their field of building construction and the registered office is situated at G-8, Tara Tower, Exhibition Road, Patna - 800001.
(ii) M/s Neeraj Newspapers Associates Private Limited had taken a loan in the year 1982-83 from the respondent-BICICO to the tune of Rs.32.44 lacs. However, the borrower company failed to repay its loan for reasons best known to itself. The assets of the borrower Company were then notified in the newspapers in 2002 for sale on successive occasions, although the respondent-Corporation had taken possession of the property hypothecated to it.
(iii) In pursuance of the sale notice issued by BICICO, one M/s Choudhary Kumar Consultants made an offer of Rs.84 lacs, but the same was not finally accepted by the BICICO.
(iv) On 15.07.2002, the BICICO published a settlement policy for its entrepreneurs, known as the OTS, in the daily newspaper “Hindustan” and set up its exit policy which has been detailed in Annexure 1. The said policy had two formulas, either of which could be availed of by the entrepreneurs.
(v) It is important to mention that prior to the issuance of the OTS scheme, contained in Annexure 1, one M/s Badrika Construction Private Limited had also made payment of a substantial amount to BICICO to the tune of Rs 50 lacs, but pursuant to the exit policy dated 15.07.2002, the original promoter M/s Neeraj Newspapers Associates Private Limited and M/s Badrika Constructions Private Limited brought the petitioners on the scene before the BICICO.
(vi) On 31.07.2002, in pursuance of the OTS scheme, contained in Annexure 1, all the four parties, namely M/s Neeraj Newspapers Associates Private Limited, M/s Badrika Constructions Private Limited, the petitioner-M/s Pine Builders Private Limited and the BICICO, entered into a four party agreement which was reduced in writing by way of the execution of “Agreement of Settlement”. The said agreement incorporated certain terms and conditions.
(vii) The said agreement was duly acted upon and the petitioners made full and final payment and in response thereto, the Deputy Manager of BICICO passed an order dated 23.09.2002 (Annexure 3), handing over possession to the petitioners which contained the inventory of the property and thereafter the petitioner came into possession of the property of M/s Neeraj Newspapers Associates Private Limited.
(viii) It is important to note here
