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Judgment
This intra-court writ appeal is directed against an interim order dated 7th November, 2019 passed by a learned Judge of this Court on the appellant's writ petition.
In terms of the Andaman and Nicobar Islands Investment Subsidy Scheme for Micro and Small Enterprises (hereafter the scheme), the appellant was found entitled to claim subsidy and was, accordingly, granted the same. Later on, it transpired that the appellant had submitted forged documents for the purpose of claiming subsidy. The Central Bureau of Investigation (hereafter the CBI) has been conducting an investigation into the First Information Report that was lodged in this behalf. The police report under Section 173(2) of the Code of Criminal Procedure, however, is yet to see the light of the day.
Be that as it may, an order dated 24th January, 2019 followed from the end of the Secretary (Industries) recalling the subsidy granted to the appellant. An amount of Rs. 64,93,511/- inclusive of interest was demanded from the appellant within thirty days of the receipt of the notice, failing which the appellant was threatened with civil action in an appropriate Court in Port Blair or any other method provided by law for recovery of the said amount.
Upon receipt of the notice, the appellant addressed a reply dated 4th February, 2019 to the Secretary (Industries). It was conveyed that in course of a raid that was conducted by it, the CBI had seized all the relevant documents and, therefore, the appellant was not in a position to respond. A request was made to keep the notice for recall of subsidy in abeyance till disposal of the criminal case initiated by the CBI.
By a letter dated 30th September 30/3rd October, 2019, the Secretary (Industries) made a request to the Tehsildar, Port Blair, South Andaman District to create encumbrance in respect of the land of the appellant to the extent of the subsidy amount and the interest so that the dues of the respondents could be recovered as arrears of land revenue in terms of the Andaman and Nicobar Land Revenue and Land Reforms Regulation of 1966. An action taken report was requested to be forwarded, to apprise the Hon'ble Lieutenant Governor of the developments in the matter.
Immediately prior to the aforesaid request, the Secretary (Industries) along with three others had instituted a suit (Money Suit No. 47 of 2019) in the Court of the Civil Judge, Senior Division at Port Blair seeking, inter alia, the following relief:
"a) A decree declaring that the defendant has borrowed a subsidy amount of Rs. 45,47,730/-(Rupees Forty Five Lakh Forty Seven Thousand seven Hundred and Thirty Only) and the defendant is liable to pay interest @ 12.5% per annum amounting to Rs. 19,45,781 (Rupees Nineteen Lakh Forty Five Thousand Seven Hundred and Eighty One Only) upto 17.01.2019 aggregating to Rs. 64,93,511/- (Rupees Sixty Four Lakh Ninety Three Thousand five Hundred and Eleven only) alongwith interest @ 12.5% per annum to the plaintiff."
The aforesaid facts in the background, the appellant invoked the writ jurisdiction of this Court on 28th October, 2019 seeking, inter alia, orders for quashing of the order for recall of the subsidy dated 24th January, 2019, as well as the request dated 3rd October, 2019, referred to above.
The writ petition was taken upon for consideration by the learned Judge on 7th November, 2019. Upon hearing the parties, His Lordship directed the appellant to secure the amount of the claim by way of fixed deposit to be made in the name of the appellant with any nationalized bank and the original fixed deposit receipt made over to the respondents in the writ petition, within seven days from date. It was made clear that in the event the appellant failed to make the requisite fixed deposit and hand over the original receipt to the respondents in the writ petition, such respondents shall be at liberty to take steps for the purpose of implementation of the impugned notice as well as to recover the amount from the appellant in accordance with law. Directions were given for exchange of affidavits and the writ petition directed to be heard by the appropriate Circuit Bench at Port Blair finally.
CAN No. 135 of 2019 is an application filed in the appeal seeking stay of operation of the order impugned.
Since the certified copy of the impugned order is not yet available, Mr. Rao, learned advocate for the appellant has sought for leave to move the appeal without the same.
Leave, as prayed for, is granted.
We have heard Mr. Rao, learned advocate for the petitioner and Mr. Sivabalan, learned advocate for the respondents on the question of interim relief.
The parties, in course of arguing their respective cases at the interim stage, have practically argued the appeal on its merits; hence, we propose to dispose of the appeal here and now dispensing with all formalities.
It has been the contention of Mr. Rao that institution of the money suit by the respondents was not within the knowledge of the appellant when the writ petition was preferred and thus, was not pleaded therein. Also, it has been contended that the scheme provides for arbitration in respect of disputes and differences arising between the parties and, therefore, the money suit instituted before the civil court may not be maintainable.
The fact of the respondents' in the writ petition having instituted a money suit for recovery of Rs. 64,93,511/- (Rs. 45,47,730/- and Rs. 19,45,781/- on account of the principal sum and interest, respectively) not having been brought to the notice of the learned Judge, we are inclined to the view that if such disclosure were made the learned Judge would have been required to examine whether simultaneous with institution of a suit for recovery of the amount claimed, the respondents in the writ petition could have requested the Tehsildar to take steps for recovery of the dues as arrears of land revenue.
We are of the considered opinion that owing to the disclosure now made in respect of institution of the suit, such a point would fall for decision before the learned Judge who would be in seisin of the writ petition during the subsequent circuit.
However, in all fairness, the respondents should have disclosed before the learned Judge that they had instituted a money suit and that the same was pending. If such disclosure had been made, we again have no doubt in our mind that the factors arising for consideration before the learned Judge qua the question of interim relief would have been entirely different.
It is in such changed circumstances that we are called upon to examine what would serve the interest of the parties best at this point of time.
There is no dispute that the appellant has been made to face a two-pronged attack by the respondents for recovery of its dues. It has not been shown by Mr. Sivabalan that such two-pronged attack is authorized by law. We need not delve deep into the point as to whether the respondents are justified in their actions, at this stage. Suffice it to record, the appellant seems to have set up an arguable case for a decision on the writ petition and a strong prima facie case for grant of interim relief. At the same time, sight cannot be lost of the fact that the respondents are dealing with public money and the trust reposed by the public in them would stand belied if for any remissness on their part, the amount claimed from the appellant cannot be recovered at all.
In such view of the matter, to serve the ends of justice, we direct the appellant to secure the principal sum, i.e., Rs. 45,47,730/- only, and not the entire claimed amount, in the manner as directed by the learned Judge within two weeks from date. A fixed deposit account shall be opened by the appellant in its name in a nationalized bank and the original fixed deposit receipt handed over to the Secretary (Industries) within forty eight hours of opening of such account. If this order is acted upon by the appellant, no further steps shall be taken by the respondents in the writ petition to enforce the claim against the appellant without obtaining appropriate orders from the learned Judge. The appellant shall also remain restrained from creating any encumbrance in respect of its property mentioned in the request letter dated 3rd October, 2019 and shall also not transfer/alienate/dispose of such property without obtaining the leave of the learned Judge. However, no effect or further effect shall be given to the request letter dated 3rd October, 2019 until further orders are passed on the writ petition.
Mr. Sivabalan has fairly undertaken that if the appellant complies with the directions contained in the preceding paragraph of this order in letter and spirit, the money suit instituted by the respondents shall not be proceeded with till such time the writ petition is disposed of finally by the learned Judge.
With the aforesaid modification of the impugned order, the appeal along with the applications stands disposed of. There shall be no order as to costs.
We make it clear that the parties shall be at liberty to urge all points that are available to them in law before the learned Judge for a decision by His Lordship. Needless to observe, the learned Judge shall proceed to decide the writ petition uninfluenced by any observation made in this order.
Hearing of the writ petition is expedited.
Time to file affidavit-in-opposition to the writ petition is extended by three weeks from date. Reply thereto, if any, may be filed by a week thereafter. The writ petition shall be listed before the learned Judge in January, 2020, subject to the convenience of His Lordship.