Hotel Shiv Shakti vs U.P. Financial Corporation

Heard learned Counsel for the Petitioner and Shri Rajiv Ratan for the Respondents.

The Petitioner assails the sale of his hotel in favour of opposite party No. 2 which sale appears to be held for recovering the amount in default by the Petitioner towards loan advanced by U.P. Financial Corporation.

Counsel for the Respondents opposing the writ petition says that earlier when recovery proceedings were initiated, the Petitioner filed writ petition bearing No. 2670 (M/B) of 2002 and another writ petition bearing No. 5826 (M/B) of 2003 was filed by Smt. Shyama Devi who was the guarantor of the loan advanced to M/S. Hotel Shiv Shakti, challenging the mode of recovery.

In view of the judgment of the Hon''ble Supreme Court in case of AIR 2003 SC 2103 a Division Bench of this Court in which one of us (Hon''ble Pradeep Kant, J.) was a member quashed the recovery proceedings initiated under the provisions of U.P. Public Money (Recovery of Dues) Act, 1972, but since the Petitioners agreed and said that they want to make the payment of the amount due in installment, this Court further directed that Hotel shall deposit an amount of Rs. 4,00,000/- within two months from the date of judgment and on the aforesaid amount being deposited, the Hotel under attachment shall be released forthwith and the balance amount shall be deposited in 10 equal quarterly installments with upto date interest. The last installment shall cover the entire interest upto date. The first installment was to fall within Ist seven days of March, 2004. The Court also directed that in case the Petitioner-borrower commits any default in compliance of the aforesaid order in making payment within time schedule, benefit of the order would not be available to the Petitioner and it will be open to the Respondent to recover the entire amount in accordance with law.

From the perusal of para 4 of the writ petition, it is clear that after 5.3.2002, no amount has been deposited by the Petitioner, whereas the aforesaid judgment was passed on 2.12.2003. Thus, the indulgence shown by the Court, by providing time for making the deposit was not honoured by the Petitioner. The Petitioner did not avail the opportunity and did not deposit any amount. The Petitioner who had given solemn undertaking for making the payment and took advantage of the order passed by the Court, for which reason, he was not subjected to coercive measures, cannot be allowed to file writ petition again, raising some plea of technicalities in the matter of recovery under Article 226 of the Constitution, more so when the Petitioner did not avail the benefit of the order passed by this Court and misused the indulgence shown by the Court.

Accordingly, the writ petition is dismissed.