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1989 Supreme(Ori) 70

High Court Of Orissa
D. P. MOHAPATRA, V. GOPALASWAMY
BHABAGRAHI PANIGRAHI - Appellant
Versus
UNION OF INDIA - Respondent
ORIGINAL JURDN. CASE 578  Of  1979
Decided On : 05/01/1989

Advocates Appeared:
A.B.MISHRA, A.MOHAPATRA, A.PASAYAT, B.K.MOHANTY, S.N.SINHA

The principles of natural justice require that a person be given an opportunity to be heard before a decision is taken that affects their rights.

Headnote:

STATE FINANCIAL CORPORATION - TAKEOVER OF INDUSTRIAL CONCERN - NOTICE - PRINCIPLES OF NATURAL JUSTICE - SALE OF INDUSTRIAL CONCERN TO THIRD PARTY - PUBLIC AUCTION - SALE BY PRIVATE NEGOTIATIONS - VALIDITY.

Fact of the Case:

The petitioner company, M/s. Premier Industrial Salts and Chemicals (Pvt.) Limited, had taken a loan from the Orissa State Financial Corporation (OSFC) and mortgaged its industrial concern as security. The company defaulted on its loan repayments, and the OSFC issued notices demanding repayment. The company failed to repay the loan, and the OSFC took over the industrial concern under Section 29 of the State Financial Corporations Act, 1951. The OSFC then sold the industrial concern to M/s. Kalinga Chemicals, a partnership firm, for Rs. 19,01,000/-. The petitioners challenged the takeover and sale of the industrial concern, arguing that the OSFC had not given them a notice before taking over the industrial concern and that the sale to M/s. Kalinga Chemicals was not conducted through a public auction.

Finding of the Court:

The Court held that the OSFC was required to give the petitioners a notice before taking over the industrial concern under Section 29 of the Act. The Court also held that the sale of the industrial concern to M/s. Kalinga Chemicals was not conducted in a fair and transparent manner, as it was not done through a public auction. The Court further held that the OSFC had acted with an ulterior motive in taking over the industrial concern and selling it to M/s. Kalinga Chemicals.

Issues: 1. Whether the OSFC was required to give the petitioners a notice before taking over the industrial concern under Section 29 of the Act? 2. Whether the sale of the industrial concern to M/s. Kalinga Chemicals was conducted in a fair and transparent manner? 3. Whether the OSFC had acted with an ulterior motive in taking over the industrial concern and selling it to M/s. Kalinga Chemicals?

Ratio Decidendi: 1. The Court held that the OSFC was required to give the petitioners a notice before taking over the industrial concern under Section 29 of the Act, as the principles of natural justice require that a person be given an opportunity to be heard before a decision is taken that affects their rights. 2. The Court held that the sale of the industrial concern to M/s. Kalinga Chemicals was not conducted in a fair and transparent manner, as it was not done through a public auction. The Court noted that the OSFC had not given any reason for not conducting a public auction, and that the sale to M/s. Kalinga Chemicals was concluded very quickly, suggesting that the OSFC had already decided to sell the industrial concern to M/s. Kalinga Chemicals before the sale process even began. 3. The Court held that the OSFC had acted with an ulterior motive in taking over the industrial concern and selling it to M/s. Kalinga Chemicals. The Court noted that the OSFC had taken over the industrial concern just two weeks after its Board of Directors had decided to do so, and that the OSFC had sold the industrial concern to M/s. Kalinga Chemicals for a price that was significantly lower than its market value.

Final Decision: The Court quashed the OSFC's order taking over the industrial concern and allowed the writ petition filed by the petitioners.

V. GOPALASWAMY, J.

( 1 ) THE petitioner No. 1 Bhabagrahi Panigrahi is the Managing Director of M/s. Premier Industrial Salts and Chemicals (Pvt.) Limited (petitioner No. 2), a company, incorporated under the Indian Companies Act, 1956 (hereinafter referred to as 'the Company') carrying on business in the manufacture and sale of Sodium Dichromate by establishing a plant at Jagatpur in Cuttack district. The petitioners Nos. 1 and 2 have filed this writ application under Art. 226 of the Constitution of India challenging the action of opposite party No. 2, the Orissa State Financial Corporation (hreinafter referred to as `the Corporation'), in taking over the possession of the Industrial Concern of the petitioner-Company with the right to sell in exercise of its power under S. 29 of the State Financial Corporation Act, 1951 (hereinafter referred to as `the Act') in pursuance of the notice under Annexure-1 and handing over the possession of the same to the opposite party No. 3 M/s. Kalinga Chemicals, a partnership firm (hereinafter referred to as 'the Firm'), of which opposite party No. 4 S. K. Routray is a partner. Opposite party No. 1 is the Union of India.

( 2 ) ACCORDING to the petitioners, the following chronology of events have ultimately driven them to file the present writ petition: on 16-9-1971 the petitioner-Company applied to the Corporation (opposite party No. 2) for a loan of Rs. 10 lakhs and the loan was sanctioned by the Corporation of (on) 5-61972. On 2-1-1973 petitioner No. 2 got lease of Government land masuring Ac. 39. 39 dec. in Mouza Khaira in Cuttack district for 99 years with a right to mortgage the same. On 5/6-1-1973 the petitioner No. 2 received the loan amount of Rs. 10 lakhs and executed and registered an English mortgage bond in favour of the Corporation mortgaging the said Ac. 39. 39 dec. of leasehold land agreeing to repay the principle sum of Rs. 10 lakhs, together with interest at the rate of 10 per cent per annum, with quarterly rests, in 9 annual instalments of equal value, the first instalment being payable on 31-3-1974 and the last instalment payable on 31-12-1982. On 30-4-1975 and 14-5-1975 the Corporation issued notice to the petitioner No. 2 making demands for the repayment of its dues, as the company committed default in the repayment of the same. The Corporation by its letter No. 8672 of the year 1975 intimated the petitioner No. 2 about its decision for filing a suit in the court of the District Judge for realisation of its dues. But subsequently at the request of the petitioner No. 2, on 29-5-1976 the Corporation sanctioned a further loan of Rs. 50,000/ -. On 15-6-1976, after receiving a sum of Rs. 29,000/- out of the loan amount of Rs. 50,000/- thus sanctioned, the petitioner No. 2 created an Equitable Mortgage in respect the said Ac. 39. 39 dec. of land and agreed to repay the principal sum together with interest at the rate of 15 per cent per annum with quarterly rests, in 5 annual instalments commencing from 31-12-1978. Petitioner No. 2 did not avail of the balance loan amount of Rs. 21,000/ -. On 8-1-1977 the Corporation sanctioned a further loan of Rs. 2 lakhs in favour of petitioner No. 2 and the terms of the loan were communicated to the petitioner No. 2 on 14-2-1977. By letter dated 13-9-1978, the Corporation intimated its objection to the petitioner No. 2 regarding its (petitioner No. 2's) proposal to lease out the Industrial Concern to M/s. Calcutta Colour Company and M/s. Oxford cheimicals Traders at a premium of Rs. 40,000/- per month. On 17-3-1979 the Board of Directors of the Corporation took a decision to take over the assets of the petitioner-Company in exercise of its powers under S. 29 of the Act and accordingly authorised its Managing Director to take the necessary steps in the matter. On 30-3-1979 the senior Consultant (Technical) of Orissa Industrial and Technical Consultancy Organisation Limited along with an officer of the Corporation inspected the plant for asse
















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