Delhi High Court
Polymermann (Asia) Pvt Ltd. vs Board For Industrial & Financial ... on 28 August, 2009
Author: Badar Durrez Ahmed
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 28.08.2009
+ W.P.(C) 11088/2009
POLYMERMANN (ASIA) PVT LTD. ..... Petitioner
- versus-
BOARD FOR INDUSTRIAL & FINANCIAL RECONSTRUCTION
AND ORS. ..... Respondents
Advocates who appeared in this case:-
For the Petitioner : Ms. Maneesha Dhir with Ms. Preeti
Dalal, Advocates.
For the Respondents : Mr. R.V. Sinha, Advocate for respondent no.1.
Mr. Sanjay Bhatt with Mr. Abhishek
Kumar, Advocates for respondent no.2.
CORAM:-
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MS. JUSTICE VEENA BIRBAL
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
BADAR DURREZ AHMED, J (oral)
By way of this writ petition, the petitioner is seeking a mandamus for
discharging the petitioner company from the purview of the Sick Industrial
Companies (Special Provisions) Act, 1985 (hereinafter referred to as SICA).
An alternative prayer is also made seeking a direction be issued to
respondent no.1- BIFR to discharge the petitioner company from the
purview of SICA forthwith and close the file and drop further proceedings in
case no.219/2004. The petitioner has also prayed for a declaration that the
action of respondent no.1 in not discharging the petitioner company from the
purview of SICA and continuing proceedings for its revival are illegal and
without jurisdiction.
2. At the outset, we may state that when this matter came up for hearing
on the first date i.e., on 24.08.2009, we had straightaway asked the learned
counsel for the petitioner that this writ petition is premature inasmuch as
there is no order which has been passed by the BIFR, either way. In
response to this, the learned counsel for the petitioner drew our attention to a
letter dated 04.08.2009 received from the BIFR in response to a query raised
under the Right to Information Act, 2005. The petitioner had sought copies
of the note-sheets from page nos. 8 to 12 in respect of the said case
no.219/2004 entitled Polymermann (Asia) Pvt. Ltd. Copies of the note-
sheets have been filed at pages 98 to 102 of the present paperbook. The
note-sheets indicate that the entire case was considered first by Mr. Pavan
Raina, a member of the BIFR and he prepared a note dated 18.06.2009
wherein he concluded that :-
"Hence a discharge, as is sought in this case on grounds of
networth turned positive through an OTS without the revival of
the sick industry would negate the very objectives for which
SICA was enacted. The representation may hence be rejected."
3. Immediately following the note is the endorsement of the Chairperson
of the BIFR to the following effect:-
"I agree in court".
It is because of this noting that we issued notice returnable today.
4. The learned counsel appearing for the BIFR (respondent no.1) stated
that this writ petition is premature inasmuch as no order has been passed by
the BIFR and what has been placed on record are mere file notings. The
learned counsel for the BIFR also submitted that the petitioner, in any event,
has an alternative remedy by way of appeal under Section 25 of the SICA
before the AAIFR.
5. We have considered the submissions made by the learned counsel for
the parties. With regard to the plea of the writ petition being premature, we
are of the view that once the members of the Board have already come to a
conclusion in view of the admitted notings that the representation is to be
rejected, the hearing which is to be granted on 31.08.2009 by the aforesaid
members of the BIFR would be a mere formality and, rather, it would be an
eye-wash. We are not at all impressed by the manner in which the BIFR has
functioned, particularly, in this case. There is no reason as to why there
should be any notings on the file pre-determining an issue which ought to be
decided after hearing the parties. Such a procedure is completely alien to
consideration of a matter by any judicial or quasi judicial authority. Earlier
also this Court in W.P. (C) No. 356/2009 had commented upon the
procedure adopted by the BIFR in disposing of the matters. We are told that
pursuant to the directions issued in that matter, the BIFR has now formulated
rules for listing of miscellaneous applications in pending references.
6. Insofar as the question of alternative remedy by way of filing an
appeal under Section 25 is concerned, that remedy would only be available
when an order is passed. Since there is no order passed by the BIFR, the
petitioner could not avail the remedy provided under Section 25 of SICA. In
these circumstances, the petitioner cannot be relegated to approach the
AAIFR.
7. Having considered the circumstances indicated above, we are of the
view that instead of this Court going into merits of the matter and taking a
decision one way or the other, the BIFR be directed to take a decision on the
representation filed by the petitioner. However, because of the file notings
referred to above, Mr. Pawan Raina and the Chairperson have disqualified
themselves from hearing this matter any further. Consequently, we direct
that another Bench of the BIFR be constituted, where neither of the above-
mentioned two persons are members, for conducting the hearing. The file
notings referred to above and the views expressed by the said two members
shall be disregarded by the new Bench which shall consider the matter
afresh, on merits. We expect that all principles of natural justice would be
followed, in letter and spirit, by the new Bench which hears the
representation of the petitioner. The new Bench so constituted shall take up
hearing of the matter in the first instance on 04.09.2009 at 11 O' clock so
that no Bench of the BIFR, in future, adopts the rather quaint procedure for
decision making as done in this case, a copy of this order be circulated to all
members of the BIFR.
This writ petition stands disposed of.
Dasti to all the parties.
BADAR DURREZ AHMED, J
VEENA BIRBAL, J
AUGUST 28, 2009
srb
