Delhi High Court
M/S Banarsi Das Khandelwal & Sons vs Canara Bank & Ors. on 5 April, 2016
Author: Hima Kohli
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 7259/2015
M/S BANARSI DAS KHANDELWAL & SONS .....Petitioners
Through: Mr. Anil Sapra, Senior Advocate,
with Mr. Aman Vachher, Mr.
Ashutosh Dubey, Mr. Abhishek
Chauhan and Mr. Sagar Mehra,
Advocates
versus
CANARA BANK & ORS .....Respondents
Through: Mr. Dinakar Singh, Advocate for
respondent No.1
Mr. Rajiv Behl, Advocate for
Official Liquidator-respondent
No.2
Mr. S.N. Relan and Mr. Abhinav
Thareja, Advocates for respondent
No.3-PNB
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
HON'BLE MR. JUSTICE SUNIL GAUR
ORDER
% 05.04.2016
1. The petitioner has filed the present petition assailing the order
dated 9th February, 2015, passed by the Debts Recovery Appellate
Tribunal (hereinafter referred to DRAT) in Misc. Appeal No.471/2010 in
S.A. No.24 of 2009 (Delhi-II) allowing the appeal filed by the Asset
Reconstruction Company (India) Limited (hereinafter referred to as
ARCIL) against the order dated 9th November, 2010, passed by the Debts
Recovery Tribunal (hereinafter referred to as DRT), whereunder it was
held that the One Time Settlement (hereinafter referred to as OTS)
offered by the Principal Debtor is pending and binding on the parties.
2. Aggrieved by the aforesaid finding returned by the DRT, ARCIL
had stated in the appeal preferred before the DRAT that the DRT cannot
go against the findings recorded by the High Court in Company Petition
No.539/1998, particularly the orders dated 24th & 25th May, 2011 and the
revival scheme of the Principal Debtor was primarily sought on the
ground that there was an OTS proposal with the lead Bank i.e. Dena Bank
and all the other banks, which had been accepted and the monies realized
by the Official Liquidator would be sufficient to discharge the liabilities
in terms of the said OTS. The said submission was however opposed by
learned counsel for the petitioner (respondent before the DRAT) on the
ground that a substantial amount has already been paid to the Banks by
the Official Liquidator from the amount that had been realized from the
sale of the properties.
3. In the course of the passing the impugned order and remitting the
matter back to the DRT, it was noted by the DRAT that the High Court
had clearly ruled that there was no OTS which fact is denied by the
petitioner. Mr. Sapra, learned Senior advocate appearing for the petitioner
points out that it has been wrongly observed by the DRAT that once the
OTS has been rejected or has not come through, the findings returned by
the DRT on that basis would be difficult to sustain. He argues that the
OTS had not been rejected by the Company Judge while passing the
orders dated 24th & 25th May, 2011 or for that matter, by the Division
Bench while passing the order dated 21st August, 2012 in Company
Appeal No.39/2011. He states that by making such an observation, the
DRAT has closed the doors in so far as the reworking of the OTS is
concerned and therefore, simply remanding the matter back to the DRT
for a fresh consideration, would be a useless exercise.
4. Mr. Singh, learned counsel for the respondent No.1-Bank, submits
that while passing the order dated 24th May, 2011, the Company Judge
had recorded that the lead Bank i.e. Dena Bank had clarified that it
opposes the OTS offered by the Principal Debtor and taking into
consideration the said submission, it had opined that the revival and
rehabilitation scheme filed by the Principal Debtor was untenable for the
lead Bank and other banks and therefore, unworkable.
5. Learned counsel for the respondent No.1 draws our attention to
paragraph No.9 of the order dated 21st August, 2012, passed by the
Division Bench to submit that it was observed that they need no go into
the question as to whether the Banks were bound by the settlement
offered by the Principal Debtor for the simple reason that the monies
realized from the sale of the assets of the Company in liquidation were
insufficient for the OTS proposal. He submits that it was for the said
reason that the Company Appeal preferred by the Principal Debtor was
rejected. Paragraph No.9 of the order dated 21st August, 2012 is relevant
and reproduced below for ready reference: -
"9. In the aforesaid state of affairs, we need not to go
into the question as to whether the Banks are bound or not by
their settlement offer inasmuch as the monies realized from
the sale till now of assets of the Company in Liquidation are
not sufficient for the Scheme proposed. We accordingly
dismiss Company Appeal No.39/2011."
6. Having perused the orders dated 24th May, 2011 and 25th May,
2011, passed by the Company Judge in Company Petition No.539/1998
and the tone and tenor of the order dated 21 st August, 2012 passed by the
Division Bench in Company Appeal No.39/2011, we are of the opinion
that the observations made by the DRAT to the effect that the High Court
had clearly ruled that there was no OTS, cannot be sustained. It is quite
evident from a perusal of the aforementioned orders that though an OTS
was under the consideration of the lead Bank and the other Banks, they
had finally rejected the same and vide order dated 21 st August, 2012, the
Division Bench had declined to go into the question of the binding effect
of the OTS only for the reason that there were insufficient monies
realized from the sale of the properties of the Principal Debtor so as to
satisfy the rehabilitation scheme.
7. Learned Senior counsel for the petitioner submits that as on date,
there are sufficient funds available with the Official Liquidator for the
Banks to rework the already suggested OTS.
8. The petitioner shall be at liberty to make the said submission
before the DRT, which shall be duly considered on merits in accordance
with law, after getting a response from the respondent-Banks.
9. Having regard to the vintage of the litigation, it is deemed
appropriate to request the DRT to expedite the hearing in the case and
decide the same preferably within a period of eight weeks from the date
of conclusion of arguments. Neither side be accommodated for any
unnecessary adjournments.
10. The present petition is disposed of.
HIMA KOHLI, J
SUNIL GAUR, J
APRIL 05, 2016
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