M/S. Crew B.O.S. Products Limited vs Dbs Bank
2014 Latest Caselaw 1981 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+              CO.APP. 21/2014 and CM No.6667/2014


M/S. CREW B.O.S. PRODUCTS LIMITED         ..... Appellant
               Through: Mr. Shiv Shankar Banerjee,
                        Advocate.

                          versus

DBS BANK                                             ..... Respondent
                    Through:       None.


CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
HON'BLE MS. JUSTICE PRATIBHA RANI

                          O R D E R (ORAL)

: REVA KHETRAPAL, J.

1. This appeal is directed against the order dated 14.03.2014 passed by the learned Company Judge in Company Petition No.52/2013 whereby the said Company Petition was admitted to hearing and a direction was issued for publication of the advertisement of the said petition in the 'Statesman' (English Edition) and 'Jansatta' (Hindi Edition) for 14.07.2014. It was, however, directed that the said order shall not be given effect to for a period of two weeks from the date thereof in order to enable the Appellant to clear the outstanding dues or arrive at an amicable settlement.

2. We note at the outset that notice of the petition was directed to be issued to the Respondent by an order dated 30.01.2013. The learned counsel appearing for the Respondent appeared on 02.05.2013 and sought time to file a reply to the petition. Six weeks time was granted to file a reply, but no reply was filed within the aforesaid period of time. On 27.08.2013, the Respondent was granted another two weeks time to file a reply as a last opportunity. Yet the Respondent again failed and neglected to file a reply to the petition. On 06.11.2013, once again two weeks time was granted to the Respondent to file a reply. Despite this, the Respondent did not file its reply. In the circumstances, the right to file reply was closed by the learned Company Judge on 14.03.2014 resulting in the passing of the impugned order. The averments made in the petition are thus uncontroverted.

3. We further note that there is no dispute between the parties that an original application being O.A. No.302/2011, before the Debt Recovery Tribunal-II under Section 19 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 (for short 'the Act') for recovery of ` 13,52,63,763.66 together with costs, pendente lite and future interest etc. culminated in a settlement between the parties.

4. It is also not in dispute that as per the said settlement the Appellant was to pay ` 13,69,92,609/- alongwith interest in three instalments and the final instalment was to be paid on or before 31st December, 2011 in the sum of ` 7,80,63,208.00. The said consent order was passed pursuant to a joint application filed by the parties herein.

5. The Appellant paid the first instalment of ` 1,01,49,041.00 to the Respondent and also paid a sum of ` 65,00,000.00 towards part payment of the second instalment. The Appellant, however, could not pay part of the second instalment and the third instalment, and thus failed to comply with the settlement.

6. On 09.05.2012, the Appellant moved an application under Section 19(25) of the Act, before the DRT-II, for modification of the compromise decree dated 15.12.2011, explaining that the sum could not be paid owing to the rejection of the loan application of the Appellant. The said application was however dismissed by the Debt Recovery Tribunal vide its order dated 03.10.2012.

7. In the circumstances, the Respondent on 10.05.2012 sent a notice under Sections 433 and 434 of the Companies Act, 1956 to the Appellant demanding a sum of ` 13,09,32,188.73. The Appellant on 29.05.2012 replied to the notice dated 10.05.2012 seeking more time from the Respondent to clear the outstanding and expressing its willingness to make payment of the balance agreed amount in terms of the compromise decree dated 15.12.2011, if the Respondent extends the time till March, 2015 and waives off the future interest. The relevant extract of the reply to the notice dated 10.05.2012 reads as under:-

"In reply to Para 13 of the legal notice it is submitted that our client is still ready to make payment of the balance agreed amount in terms of compromise dated 15.11.2011, if the applicant bank extends the time till March, 2015 and waives off the future interest."

8. It clearly emerges from the above that the Appellant is liable to pay the balance amount in terms of the settlement arrived at between the parties before the Debt Recovery Tribunal. Presumably for this reason, no reply to the petition was filed by the Appellant despite ample opportunity being granted for the aforesaid purpose. The averments made in the petition are thus unrebutted and unchallenged.

9. In view of the aforesaid, we see no infirmity in the impugned order. The order admitting the petition and issuing citation, therefore, calls for no interference.

10. Resultantly, the appeal and CM No.6667/2014 stand dismissed.

REVA KHETRAPAL JUDGE

PRATIBHA RANI JUDGE April 21, 2014 km