Vasantha Industries vs Karnataka State Financial Corporation

S.P. Bharucha, C.J.—This appeal is filed against the order of dismissal of the writ petition filed by the appellant.

The appellant has filed an earlier writ petition (being W.P. No. 19269 of 1986). That writ petition was dismissed as withdrawn with an observation that the respondent (the Karnataka State Financial Corporation) would consider the appellant''s application for rehabilitation of its industry in accordance with law and in accordance with the practice followed by the respondent for considering such applications.

The application of the appellant was subsequently considered and, by a letter dated April 16, 1990, the respondent communicated to the appellant its willingness to extend rehabilitation facilities on the terms and conditions mentioned in the said letter. The appellant found those conditions unacceptable and filed the present writ petition to quash the said letter and to direct the respondent to consider the proposal for rehabilitation in the light of the directions issued by the Reserve Bank of India and the Industrial Development Bank of India (IDBI). The appellant also sought to quash the notice issued by the Special Tashildar proposing to sell by the public auction the appellant''s property.

The learned single judge noted that the respondent was agreeable to extend to the appellant the rehabilitation scheme but the appellant was not agreeable to the conditions prescribed. The learned judge said that the court could not consider the rehabilitation scheme and substitute its opinion in the place of that of the respondent.

It was contended before us that the respondent was obliged by the order make in the previous writ petition to consider the appellant''s application for rehabilitation in accordance with law. It was submitted that the letter dated April 16, 1990, provides for payment of interest at 14.5%, whereas the circular of the IDBI dated July 21, 1987, prescribes interest at the rate at the most, of 11.5% and that, therefore, there is a contravention of the terms of the circular, which is law.

The circular of IDBI states this :

(i) Refinance : The rate of interest, on rehabilitation refinance from IDBI would be 9% per annum.

(ii) Rehabilitation loan : The rate of interest on rehabilitation loan should be normally 10% per annum.

However, the primary lending institutions may increase the rate up to 11.5% per annum in cases where the higher rate is justified on the basis of anticipated profitability of the borrowers. In such cases, the primary lending institutions can retain the resultant higher spread."

It is clear that the rate of 9% per annum is the rate which would be charged by the IDBI itself. The rate of interest that the respondent can prescribe is as set out in clause (ii).

The letter of the respondent dated April 16, 1990, prescribes simple interest at the rate of 10.5% on one loan and of 11.5% per annum on the second loan. The rate of 14.5% is provided for only if there is default in payment of instalments. It does not appear to us, therefore, that it can be said that the terms of the proposal of the respondent made on April 16, 1990, are contrary to law.

Our attention was drawn by learned counsel for the appellant to the judgment of a learned single judge of the Bombay High Court in Chemiequip Ltd. and Another Vs. Bank of Baroda and Others, . The definition of "viability" contained in the Reserve Bank of India circular was quoted there. We do not think it necessary to reproduce the same. What is more important is that the learned judge observed that it was not possible for the court to determine whether or not a particular unit was viable, because such determination required examination of various facts, including financial implications, which the courts were not in a position and not equipped to undertake. The learned judge also observed that it was necessary for the court to leave some discretion in favour of financial institutions to determine whether a unit is viable or otherwise an the court should be extremely slow in forcing the financial institutions to advance public funds to private parties on an assumption that the industry would be viable. The discretion exercised by the financial institutions was not be interfered with unless it was made for extraneous purposes or upon extraneous considerations. We are in agreement with the observations.

It was suggested that there had been discrimination inasmuch as other industries had been rehabilitated by the respondent whereas the appellant''s had not been considered. The observations which we have approved would apply. The court is not equipped to undertake an appreciation of the possible viability of one industrial undertaking as opposed to another.

In the absence of a clear demonstration of oblique motives, the court should not interfere with the exercise of its functions by a financial institution.

In the result, the appeal is dismissed. There will be no order as to costs.