Residents Association Chand ... vs Govt. Of N.C.T. Of Delhi & Ors
2008 Latest Caselaw 2192 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                         W.P.(C) No. 22163/2005

                                  Reserved on : 15th September, 2008

%                              Date of Decision : September 18th ,2008

INDUSTRIAL CABLES INDIA LTD.                 ..... Petitioner
                 Through:                    Ms. Manisha Dhir, Adv.
                                             with Ms. Preeti Dalal, Adv.

                                  Versus

A.A.I.F.R. & ORS.                            ..... Respondents
                         Through:            Mr. Sangram Patnaik, Adv.
                                             with Mr. S.K. Jha, Adv. for R-3.
                                             Mr. S.L. Gupta, Adv. with
                                             Mr. Virender, Adv. for R-4 & 5.

CORAM:
HON'BLE MR. JUSTICE MUKUL MUDGAL
HON'BLE MR. JUSTICE MANMOHAN

1. Whether Reporters of local papers may be allowed to see the judgment? Yes.
2. To be referred to the Reporter or not?                                Yes.
3. Whether the judgment should be reported in the digest?                 Yes.


                         JUDGMENT

MANMOHAN, J:

1. The present writ petition under Articles 226 and 227 of the

Constitution of India has been filed for issuance of an appropriate

writ, order or direction for setting aside the order dated 5th March,

2004 passed by the Board of Industrial and Financial Reconstruction

(hereinafter to be referred as 'BIFR') as well as the order dated 5th

October, 2005 passed by the Appellate Authority for Industrial and

Financial Reconstruction (hereinafter to be referred as 'AAIFR'). In

this petition there is also a prayer for incorporating Clause 8.5 (G) (ii)

of the Draft Rehabilitation Scheme (hereinafter to be referred as

'DRS') as deleted by BIFR on 5th March, 2004 in the sanctioned

scheme.

2. Mrs. Manisha Dhir, learned counsel appearing for the petitioner

submits that AAIFR vide the impugned order dated 5th October, 2005

had dismissed the appellant's appeal on the short ground that the

appellant had given its consent for deleting Clause 8.5 (G) (ii) of the

DRS and, therefore, was not competent to challenge the said

deletion. She drew our attention to the relevant portion of the

impugned order of AAIFR which reads as under:-

" We are, however, unable to accept the aforesaid submission before us since we find from the contents of para 20 of the impugned order it has been recorded as follows:-

" On page 12 para (G) "Working Capital Facilities" sub-para (ii) was directed to be deleted in view of the refusal to accept company‟s demand for changing interest at PLR. It was, therefore, directed at the request of Shri Alok Dhir, Advocate for the company, re-word this paragraph by adding the word "at PLR as per RBI guidelines. All present agreed."

Further, we are of the view that the aforesaid prayer can be granted by AAIFR in an appeal against the order impugned wherein the aforesaid statements have been recorded by the BIFR and no application was made on behalf of the company before the BIFR that the aforesaid request allegedly

made by Shri Alok Dhir, Advocate was incorrectly recorded."

The appeal is, therefore, misconceived and has no merit and is dismissed."

3. Mrs. Manisha Dhir has also drawn our attention to the order of

BIFR dated 5th March, 2004 wherein the appellant gave its consent

actually for re-wording of sub-para (G) (iv) of the DRS. The relevant

portion of BIFR's order wherein the appellant had given its consent is

reproduced herein below:-

"On page 11, para (E) (i) „Unit Trust of India‟, it was directed to add „To Consider‟. On page 13, para (g) „Working Capital Facilities‟, sub-para (ii) was directed to be deleted in view of the bankers refusal to accept company‟s demand for charging interest at PLR. On sub-para(G) (iv), the representative of SBP submitted that they were not inclined to grant any more working capital to the company than their existing exposure. The Bench, however, did not accept SBP‟s submissions since it was mandatory on the part of the financing Bank to provide need based working capital to the company under rehabilitation scheme in accordance with the RBI guidelines. It was, therefore, directed, at the request of Shri Alok Dhir for the company, re-word this paragraph by adding the word „at PLR as per RBI guidelines‟. All present agreed."

4. In view of the aforesaid facts, we are of the view that the AAIFR

has, in the impugned order, wrongly recorded the consent given by

the appellant with regard to the variation of sub-para (G) (iv) of the

DRS as a consent for deletion of Clause 8.5 (G) (ii). Consequently,

as the petitioner had not given its consent for deletion of Clause 8.5

(G) (ii) of the DRS, the impugned order dated 5th October, 2005

cannot be sustained and is set aside and the Appeal No. 126 of 2004

is remanded back to AAIFR for being heard and decided in

accordance with law. The parties are directed to appear before

AAIFR on 17th November, 2008.

5. The present writ petition is disposed of.

MANMOHAN, J

MUKUL MUDGAL, J

SEPTEMBER 18th, 2008 sb