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TMI Blog2003 (8) TMI 408X X X X Extracts X X X X X X X X Extracts X X X X ..... ef has not been pressed during the course of argument by the learned counsel for the petitioner and hence, the entitlement of main relief is being considered." 3. The case of petitioner as put forth by him in his petition is that petitioner is a registered partnership Firm who carries on business of manufacturing of Milling of Pulses at Pachor District Rajgarh (Biora). The M.P. Financial Corporation (hereinafter referred to as the Corporation) had sanctioned a finance of Rs. 7,15,000 for land and site development, construction of factory building, purchase of Plant and Machinery etc. and for the security of re-payment of the loan created an English mortgage of its land i.e. 0.318 hectare of Survey No. 200 situated at Village-Bilapura, Tehsil and District-Rajgarh in favour of the Corporation. 4. It has been further submitted by the petitioner that he did not repay the amount to the Corporation as according to it, it was beyond its control. A sum principal amount and interest and other incidental charges and for its realisation the Corporation issued notice through its counsel to the petitioner Firm. The petitioner through its counsel sent reply to the said notice. It has been furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner telegraphically. Finally the Corporation made a demand of its dues vide telegraphic notice dated 4-3-1994. 8. As the petitioner failed to repay the loan amount the Corporation exercised its special power conferred to it under section 29 of the Financial Corporation Act, 1951 and took over the possession of the land, building, plant and Machinery mortgaged to it. At the time of taking over the possession of the Unit, the same was found to be closed and no industrial, activities were being carried in it, no one on behalf of the petitioner was found present at that juncture. The Unit was lying abandoned for quite some time. Thereafter the Surveyor of the Corporation inspected and prepared an assessment report indicating therein the value of property to be 5.540 lakhs. 9. The Corporation advertised for sale of the mortgaged property on six occasions. Four advertisement dated 12-1-1995 published in Chronicle; dated 23-7-1995 published in Dainik Bhaskar and Chronicle dated 22-9-1995 published in National Mail and dated 11-1-1996 published in Dainik Bhaskar. Despite having giving wide publicity the unit could not attract any purchaser willing to pay satisfactory price and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ior Counsel Shri S. Bhargava that the Corporation was not required to serve any notice to the petitioner. To buttress his submission he has placed reliance on the latest pronouncement of the Supreme Court in the case of State Financial Corpn. v. Jagdambe Oil Mills AIR 2002 SC 834. It has been vehemently argued by the learned counsel that it has come on record that the unit has been sold to the respondent No. 2 and he is possessing it but no relief has been claimed against him though, he has been impleaded as party to the petition as respondent No. 2. 12. Shri Vinay Zelawat, learned counsel appearing for the purchaser by placing reliance on a decision of the Apex Court in the case of Chairman & M.D. Sipcot, Madras v. Contromix (P.) Ltd. AIR 1995 SC 1632 argued that there is no merit in the petition and the same deserves to be dismissed. 13. Before considering the rival contentions of learned counsels for the parties, it would be profitable to re-write section 29 of the Act which reads as under :-- "29. Rights of Financial Corporation in case of default.--(1) Where any industrial concern, which is under a liability to the Financial Corporation under an agreement, makes any default ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m was fully aware that a huge amount to the tune of Rs. 7,87,000 was required to be paid by it. The Corporation tried its best to get the matter settled but on account of slackness of the petitioner firm could not realize the amount which was required to be paid by the petitioner firm. In a petition under Article 226 of the Constitution this court can interfere only when the Corporation is unfair or unreasonable or its act is in violation if any statutory provision. The doctrine of fairness cannot be invoked to disable the Corporation from recovering its loan. This court would also not sit in judgment as it were hearing an appeal in order to resurrect or revive a sick unit. On the basis of the material place before this Court one could not infer that there was any mala fide on the part of the Corporation. Merely, because there is some irregularity in mentioning the size of the land, would not in itself be a ground to hold that there was a mala fide on the part of the Corporation. The Apex Court in the case of Jagdambe Oil Mills (supra) while analyzing the powers of this Court under Article 226 of the Constitution of India in context to section 29 of the Act has held that if the deb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unicipal Corpn. of Delhi AIR 1977 SC 567 it has been held by the Apex Court that the High Court would be justified in refusing to carry on investigation into the allegations of mala fides if necessary particulars of the charge making out a prima facie case are not given in the writ petition as the burden of establishing mala fides lies there heavily on the person who alleges it. The Supreme Court up held the decision of High Court dismissing the writ petition. If the ratio decidendi of the case of Bharat Singh (supra) and Tara Chand (supra ) is tested on anvil of the present factual scenario it would reveal that in the present case, though the petitioner vaguely pleaded that the action of the Corporation is mala fide but necessary particulars regarding it has not at all been pleaded nor any material in the form of annexures has been annexed along with the petition and hence the contention of learned counsel of the petitioner that the action of the corporation is mala fide has no merit and is hereby rejected. 17. In the case of Contromix (P.) Ltd. (supra) it has been held by their Lordships of the Supreme Court that a public auction after adequate publicity ensure participation of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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