R.K. Patra, J.
1. In this petition under Articles 226 and 227 of the Constitution, the petitioner M/s. New Kemilworth Hotel Private Limited through its Manager prays for a writ in the nature of mandamus restraining the Orissa State Financial Corporation Limited, opposite party No. 1, (hereinafter referred to as the Corporation) from evicting it from the disputed hotel premises. It also seeks quashing of the notice dt. 4-7-1996 (Annexure-2) by which the Corporation has communicated its decision to take over possession of the hotel premises under Section 29 of the State Financial Corporation Act, 1951,
On 18-12-1996 notice was issued in the matter indicating that the matter is likely to be finally disposed of at the stage of admission. On 15-1-1997, M/s Ashoka Industries limited made an application to be impleaded as opposite party. The said prayer having been allowed, it has featured as opposite party No. 4 in the case. It has filed its counter affidavit resisting the prayer of the petitioner. The Corporation has also filed its counter affidavit.
2. We have heard Shri Y. Das for the petitioner, Shri B. P. Patnaik for opposite party No. I and Shri B. K. Mohanti for opposite party No. 4.
The facts emerging from the pleadings are as follows :
The Corporation after seizing and taking over the hotel premises from M/s. Ashoka Industries Limited (opposite party No. 4) in exercise of the powers under Section 29 of the State Financial Corporation Act, 1951 (hereinafter referred to as 'the Act') entered into an agreement on 12-2-1988 with the petitioner by virtue of which the latter (petitioner) took over the hoterpremises for 10 years with a right of renewal. (There is serious dispute between the parties with regard to the nature of the agreement dt. 12-2-1988. The petitioner claims it to be a lease whereas the Corporation and the opposite party No. 4 assert that it is a mere licence). Later when the Corporation advertised for sale of the hotel premises, the opposite party No. 4 filed a writpetition (OJC No. 4047 of 1989) praying for redemption of the mortgage as well as for direction to hand over the possession of the hotel premises to it. This Court disposed of the writ petition by observing that it is open to the opposite party No. 4 to seek redemption of the mortgage in a civil Court. The opposite party No. 4 accordingly filed a suit being T.S. No. 261 of 1991 in the Court of the Civil Judge (Senior Division), Bhubaneswar for redemption of the mortgage and the said suit is still pending. When the matter stood thus, the petitioner filed T.S. No. 271 of 1994 in the Court of the Civil Judge (Senior Division), Bhubaneswar praying for a declaration that the aforesaid agreement dt. 12-2-1988 is a lease with a right of renewal and for permanent injunction from disturbing its possession over the hotel premises. Along with the plaint, the petitioner filed a petition (registered as Misc. Case No. 529 of 1994) under Order 39 Rules 1 and 2 read with Section 151 CPC praying for injunction restraining the Corporation and other defendants from disturbing its possession and management of the hotel premises till the disposal of the suit. The learned Civil Judge after hearing the parties passed an order injuncting the Corporation and other defendants from dispossessing the petitioner. Being felt aggrieved by the order of injunction, the Corporation and other defendants filed Misc. Appeal Nos. 542, 543 and 544 of 1994 in this Court under O. 43, R. 1 CPC. A learned Single Judge by a common judgment dt. 18-5-1995 vacated the order of injunction and allowed the appeals. Against the said judgment of the learned Single Judge, the petitioner filed Letters Patent Appeals bearing A.H.O. Nos. 40, 41 and 42 of 1995. This Court dismissed the aforesaid appeals on 16-12-1995 holding that in the face of the bar contained in Sub-section (2) of Section 104 CPC the Letters Patent Appeals are not maintainable. Against this decision, the petitioner filed Special Leave Petitions which have been dismissed, as stated at the Bar, by their Lordships of the Supreme Court on 20-1-1997.
The allegation of the petitioner is that when the Letters Patent Appeals were pending in this Court, the Corporation issued the impugned notice at Annexure 2 alleging that in terms of the leave and licence agreement dt. 12-2-1988 a sum of Rs. 1,34,74,767.90 is outstanding against it (petitioner) by 12-2-1996 and as the said amounthas not been laid, decision has been taken to take over possession of the assets of the hotel on 'as is where is' basis under Section 29 of the Act with a right to proceed further for realisation of the dues of the Corporation in accordance with law. According to the petitioner, the provision of Section 29 of the Act is not applicable to it. Besides this, it has already paid a sum of Rs. 1,99,44,211.90 to the Corporation by 15-3-1996 and, as such, the impugned notice is bad in law.
3. Shri Mohanty submitted by way of preliminary objection that the petitioner filed a petition under Articles 225 and 227 of the Constitution being O.J.C. No. 5576 of 1996 challenging the very impugned notice and the said petition having been dismissed as withdrawn on 29-7-1996, the present petition is not maintainable as it has been filed without taking leave of the Court earlier.
It has been held by the Supreme Court in Sarguju Transport Service v. State Transport Appellate Tribunal,Gwalior, AIR 1967 SC 88 (sic) that if a petition under Article 226 of the Constitution is withdrawn without taking leave to file a fresh petition in respect of the same cause of action, a fresh writ petition is not maintainable on the ground of public policy. Admittedly, in the earlier petition (O.J.C. No. 5578 of 1996) the present impugned notice was the subject matter of challenge. The said petition was dismissed as withdrawn on 29-7-1996 with the following order:
'Shri Y. Das seeks permission to withdraw the writ application saying that he may file a fresh one incorporating further facts. Accordingly, the writ application is dismissed as withdrawn.'
The aforesaid order indicates tha tno leave was granted to the petitioner to file a fresh petition questioning the validity of the impugned notice. In view of the aforesaid, the present petition is clearly not maintainable on the ground of public policy.
4. Since we heard counsel for both the parties on merits also, we proceed to discuss the points raised in the case.
5. Shri Y. Das contended that provision of Section 29 applies only to the industrial concern which has pledged, mortgaged or hypothecated or assigned any of its rights in a property to the Corporation and the petitioner having not doneany of the above and on the contrary, it having got the hotel premises from the Corproation by way of licence/lease, the Corporation cannot arm itself to exercise power under Section 29 of the Act for recovery of its dues, if any. In support of this contention, he placed reliance on the judgment of Kerala High Court in M/s. Kaveri Meat Export Co. Ltd., Cochin v. The Kerala Financial Corporation, Thiruvananthapuram, AIR 1996 Kerala 305. He further submitted that the learned single Judge in his judgment dt. 18-5-1995 rendered in M. A. Nos. 542, 543 and 544 of 1994 recorded a finding that for the default of licence fee of the petitioner, the Corporation cannot resort to the remedy under Section 29 of the Act and the said finding having been not challenged by the Corporation, it has become final. Shri Mohanty on the other hand submitted that with the dismissal of the Special Leave Petitions, the judgment of the learned single Judge has attained its finality and it operates as res judicata against the petitioner even assuming for the sake of argument as contended by Shri Das that the said judgment of the learned single Judge is erroneous in law. In support of the aforesaid contention, Shri Mohanly relied on a judgment of this Court in O.J.C. No. 5111 of 1990 disposed of on 26-7-1993 (Bharat Heavy Electricals Ltd. v. State of Orissa). In that case, while challenging the assessment, the assessee also questioned the constitutional validity of Section 5(2)(AA)(i) of the Orissa Sales Tax Act. This Court upheld the validity of the aforesaid provision. Later the assessee challenged the order of assessment made for the assessment year 1983-84 on the grounds, inter alia, that identical provision of Rajasthan Sales Tax Act having been sttuck down by the Supreme Court in Gannon Dunkerley's case (S.L.Ps (Civil) Nos. 3365-68 of 1992) notwithstanding the earlier decisin of this Court declaring Section 5(2) (AA) (i) of the Orissa Sales Tax Act intra vires, the Court should strike down the same. The said contention did not find favour with this Court which held that the provision having been declared intra vires in the case filed by the assessee itself, it is not open to examine the matter afresh being hit by the principle of res judiciata.
We have given our anxious and caraful consideration to the contentions of the parties. On examination of the matter and on perusal ofthe judgment of the learned single Judge in M. A. Nos. 542, 543 and 544 of 1944, itappcars that this very contention was raised before him and the learned Judge has answered the issue in Paragraphs 13and 14 of the judgment. As already noted, the judgment of the learned single Judge has attained finality consequent upon the decision of this Court that letters Patent Appeals against the said judgment was not maintainable and the Special Leave Petition filed in the matter have been dismissed by the Supreme Court. Thus the issue with regard to applicability of Section 29 of the Act operates as res judicate between the parties.
6. We may also consider the submission of Shri Patnal learned counsel appearing for the Corporation. He submitted that the petitioner in essence wants to wriggle out of its contractual obligation to pay the dues which should not be permitted in this proceeding. As it appears, against the claim of Rs. 1,34.74,767.90 by 12-2-1996 mentioned in the impugned notice, the petitioner claims to have paid to the Corporation a sum of Rs. 1,99,44,221.90 by 15-3-1996. Shri Patnaik disputed such claim made by the petitioner. The petitioner's relief being thus based on disputed claims, a writ Court is not the appropriate forum to decide the rights and liabilitites of parties flowing from a contract.
7. In view of what has been stated above, what relief the petitioner is entitled to in this petition? Admittedly, the petitioner has filed the prosent petition on 16-12-1996 on which day its Letter Patent Appeals were dismised by this Court at not maintainable. Apprehending that the Corporation would proceed to take action under Section 29 of the Act following the dismissal of the Letters Patent Appeals, the petitioner has apparently filed this petition and has opened up the battle on a different front.
8. In the result, we are not inclined to accede to the prayer of the petitioner. The petition is accordingly dismissed. There would be no order as to costs.
9. With the dismissal of the petition, the interim order dt. 22-1-1997 passed in the case stands dissolved.