JUDGMENT

G.S. Sandhawalia, J. -

CM-14506-CWP-2022

After arguing for some time, counsel for the applicant/petitioner does not press the application for modification of the order dated 17.05.2018.

Accordingly, the application stands dismissed as not pressed.

CWP-4562-2016

In the present writ petition filed under Article 226/227 of the Constitution of India, the challenge has been made to the order dated 22/23.12.2015 (Annexure P-12), wherein the claim of the petitioner for being considered for the One Time Settlement (OTS) proposal was rejected. The claim was in pursuance to the OTS (Annexure P-5) and, therefore, the prayer was made to stay the recovery of amount in pursuance to the Civil Court decree.

2. A perusal of impugned order dated 22/23.12.2015 (Annexure P-12) passed by respondent No.2-National Horticulture Board, a Society registered under the Societies Registration Act, 1860 would go on to show that the suit dated 16.01.2002 had been decreed on 29.04.2008 (Annexure P-1) in favour of the said Board, which has been filed for recovery of its dues for amount of Rs.52,96,692/- alongwith interest @ 18% per annum from the date of filing till the date of realization. The appeal filed against the said judgment and decree was dismissed by the District & Sessions Judge, Patiala on 06.12.2011. The petitioners, thereafter, filed CWP No.21447 of 2011 before this Court, wherein it was directed that the execution proceedings would remain in abeyance till the decision is taken on the OTS and finalize. Letters Patent Appeal No.294 of 2015 filed by the Board was decided on 26.02.2015, which was partly allowed that the case be treated as pending suit and not a decreed case.

3. Resultantly, while re-considering the Board came to the conclusion that the company is not eligible for OTS being a willful defaulter as it had earned profit during its operation in some of financial year as per balance sheet provided. It was also held that once it was not paying any amount to the Board despite being in profit, it would not fall in the category of cases which were eligible for OTS and, therefore, it had rejected the claim for being considered under OTS Scheme.

4. Initially the petitioner had been protected vide order dated 18.03.2016 and eventually vide order dated 19.03.2018 it was directed to deposit a sum of Rs.5 lakhs within a period of one week, which had been duly complied with. It was noticed on 17.05.2018 that recoverable amount was Rs.2,09,29,135/- and, therefore, the plea that offer of Rs.28 lakhs should accepted was rejected and the stay was declined and directions were given that he may submit a fresh OTS proposal alongwith upfront amount of Rs.20 lakhs within one month, which can be considered by the respondent- Board.

5. The stand of the respondent-Board is that the petitioner was not regular in making the installments and had failed to repay the loan and only one installment of Rs.7 lakhs had been paid on 28.10.1998. Reliance was placed upon the OTS Scheme to hold out that once there is a willful default, the borrower would not be entitled for the OTS, specially when the Unit is in running condition and earning profits. Clause 1 (e) (i) & 9ii) read as under:-

"Clause 1

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(e) (i) the scheme will not, however, cover cases of fraud, malfeasance and willful default.

(ii) The Debt Settlement Advisory Committee (DSAC) as constituted by the Managing Director would examine and recommend whether the borrower has not committed willful default and is eligible for the OTS scheme."

6. In our considered opinion a short question would arise as to whether the petitioner is entitled for the benefit of the OTS as a matter of right, kee