The petitioner, Kaveri's Bio Proteins Private Ltd., has sought for issuance of writ of mandamus directing the first respondent to ensure compliance of the circular issued by the first respondent bearing No. RPCD.PLFS.BC.No. 48/05.04.02/2007-08 dated 19.02.2008 and consequently, direct the first respondent to issue instructions to the second respondent to reschedule the term loan bearing No.K140901001 extended by them to the petitioner company.
2.The petitioner company is a private limited company situated in a backward area engaged in the manufacture of poultry feeds, cattle feeds, fish feed, aqua feed, animal feed etc. and the same has also been registered as a small scale industry in Agri Sector undertaking on 29.04.1994 for which a registration No.18/11/16652/PM/SSI has been allotted by the General Manager, District Industries Centre, Salem. Since the petitioner was in a constant and increasing need for electricity, they decided to set up a windmill facility for their own consumption. Therefore, the petitioner approached the second respondent, ICICI Bank towards borrowing loan for setting up this facility. After negotiations, the second respondent had decided to extend a term loan of Rs.80,00,000/- under Account No.K140901001 on the basis of the terms mentioned below:
a)The principal has to be repaid in 19 equal quarterly installments after a moratorium of three months. However interest would be paid every month as and when due and no moratorium would apply in the case of interest.
b)The facility amount was to be disbursed in tranches of Rs.2.50 million each to the petitioner.
c)The facility was to be secured by an exclusive charge on the fixed asset which is the subject matter of the loan. That apart the party was also called upon to provide the personal guarantee of the promoter directors.
d)In addition to the above, the petitioner company was also required to execute a mortgage deed and create a charge on the land and building with the 2nd respondent the plant and machinery was also required to be hypothecated with the 2nd respondent.
3.In pursuant to this sanction, the petitioner had also executed all the documents as required under the sanction letter issued by the second respondent . Thereafter, an amount of Rs.80,00,000/- was disbursed to the petitioner and the windmill has been erected successfully. The wind mill was commissioned only to generate power which was to be supplied to the petitioner's own poultry feed production and poultry farm operational needs at a lesser cost. Further, it is also submitted by the petitioner that they also entered into a power purchase agreement dated 30.03.2006 with the Tamil Nadu Electricity Board to generate power by the company by installing one windmill of 225 KW capacity and to transmit such portion of power generated by the windmill to their HT industry premises of the company viz., Kaveri's Bio Proteins Private Ltd. In wake of the out-break of Avian Influenza (Bird Flu) the Poultry Industry in many parts of the country had suffered huge financial loss on account of culling of the birds as well as the decline in the demand for poultry products. As a result, the prices of the poultry products steeply declined. Taking note of the situation and deterioration in poultry farm in lieu of bird flu, the first respondent herein had come forward with several relief measures and one of the measures suggested by the first respondent was that the principal and interest on working capital loans as also installments and interest on term loans which had fallen due for payment on or after the onset of bird flu i.e., 31.12.2007 and remaining unpaid amounts could be converted into term loans. The remaining portion of the term loan was also suggested to be rescheduled with a moratorium period up to one year depending upon the cash flow generating capacity of the unit. The reschedulement/conversion was to be completed on or before 30.04.2008. In view of the above said guidelines circulated by the first respondent by their circular letter dated 26.02.2008, the petitioner requested the second respondent to reschedule the petitioner's term loan in keeping with the guideline mentioned above through e-mail dated 01.03.2008. Finally, the second respondent, ICICI Bank has made it clear by letter dated 03.03.2008 declaring the request of the petitioner stating that reschedulement is not possible.
4.The decision conveyed by the second respondent was not even challenged and it has become final. Therefore, the petitioner was constrained to file the present writ petition and on the basis of submissions made by the learned counsel for the petitioner praying this Court to allow the writ petition.
5.In reply, the learned counsel for the second respondent submitted that the petitioner has borrowed a loan of Rs.80,00,000/- only for the purpose of setting up of windmill project and not for the poultry farm. Out of the loan borrowed from the second respondent herein, they have successfully set up the windmill project and after consuming the required electricity produced by the windmill, major portion of the power was sold to the Tamil Nadu Electricity Board. When the petitioner has been selling the electricity produced from the windmill to the Tamil Nadu Electricity Board for profit, the petitioner cannot come and say that they are entitled to go for reschedulement of the loan by way of seeking direction of this Court. This would amount to rewriting of the loan agreement which had already been agreed and settled between the petitioner and the second respondent.
6.Heard the submissions on either side.
7.Admittedly, the petitioner has borrowed the loan from the second respondent, ICICI Bank only for the purpose of setting up a windmill and not for poultry farm. The circular issued by the first respondent also says any poultry farm which borrowed loan from any financial institution like that of the second respondent is entitled to enjoy the profit only for a period of one year and that one year was also over. Further, the second respondent, ICICI Bank has brought to the notice of this Court that the petitioner after commissioning the wind mill by borrowing huge loan of Rs.80,00,000/- has been selling even today more electricity to the Tamil Nadu Electricity Board. When the petitioner has been enjoying the profits out of the windmill set up at the cost of Rs.80,00,000/- borrowed from the second respondent, this Court is not inclined to accept the prayer sought for by the petitioner which will otherwise amount to rewriting of the agreement which they had already entered between the petitioner and the second respondent. In view of these reasons, the Writ Petition is dismissed. Consequently, the connected miscellaneous petition is closed. No costs.
19.11.2009 Index:Yes/No Internet:Yes/No gm T.RAJA, J.
gm W.P.No.25431 of 2008 19.11.2009