THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 20.10.2011
+ WP (C) 7307/2011
IFCI LTD ... Petitioner
versus
BHARAT STEEL TUBES LTD AND ANR ... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr Parag Tripathi, ASG with Mr Apoorve Karol, Ms Purti
Marwaha, Mr Chirag Kher and Ms. Monisha Handa, Advocates
For the Respondents : Mr Maninder Singh, Sr. Adv. with Mr Vivek Malik, Adv.
Mr Arun Bharadwaj, Sr. Adv. with Mr Amit Dhupar, Adv.
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 Digest ?
BADAR DURREZ AHMED, J. (ORAL)
1. We have heard the counsel for the parties and with their consent are
disposing of this writ petition. It is also necessary to observe that we had not
required the respondents to file their counter affidavit, therefore, it should
not be construed that the factual averments made in the writ petition have
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gone unrebutted or be deemed to have been admitted by the respondents. In
fact, Mr Bhardwaj appearing for the respondent No.1 and Mr Maninder
Singh appearing for the respondent No.2 have submitted that they are
denying all the allegations made against them on factual matters which are
contrary to the stand taken by them before various fora in this matter. Of
course on legal issues there cannot be any affidavit and therefore the learned
counsel appearing for the respondents have controverted the same in their
submissions before court.
2. This case has had a chequered history with three rounds before this
court and two rounds before the Supreme Court. In the first round the
petitioner had filed a writ petition being W.P (C) 6652/2010 in which an
interim order dated 29.09.10 had been passed by a Division Bench of this
Court. However, that order became the subject matter of a Special Leave
Petition before the Supreme Court being SLP (C) 29421/2010. Since the
matter was pending before the Supreme Court the writ petition was disposed
of on 11.11.2010. In the second round, two writ petitions being W.P. (C)
254/2011 and W.P. (C) 415/2011 were disposed of by a Division Bench of
this court on 15.02.2011. In the third round, writ petition No. 2282/2011 was
filed before this court by the present petitioner which was also disposed of
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on 20.04.2011 by another Division Bench of this Court. Before the second
round of writ petitions in this court, the Supreme Court disposed of the
Special Leave Petition by virtue of an order dated 30.11.10 whereby the
Supreme Court inter alia passed the following orders:-
“30. We, therefore, dispose of the Special Leave Petition
with a direction upon the Debts Recovery Appellate
Tribunal to dispose of the pending appeal as early as
possible since it would not be proper on our part to
express any definite view regard to the pending
proceedings before the said Tribunal. Till a decision is
arrived at by the Debts Recovery Appellate Tribunal in
the matter, the auction proceedings being conducted
under the SARFAESI Act shall remain stayed.”
3. Against the judgment and order dated 15.02.2011, the respondent
No.1 sought Special Leave of the Supreme Court by filing a petition being
SLP (C) No. 7631-7632/2011. The said Special Leave Petition was
dismissed by the Supreme Court by its order dated 15.03.2011.
4. We need not refer to the contents of all the orders mentioned above
nor do we need to set out the entire chronology of events as indicated by the
parties in their respective list of dates. What is important for the present is
that an order was passed by the Debt Recovery Appellate Tribunal on
22.03.2011 in Miscellaneous Appeal No. 352/2010 and Miscellaneous
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Appeal No. 353/2010 in S.A. No. 370/2010 (Delhi-III) whereby, pursuant to
the Supreme Court direction and the direction given by this Court, it heard
and disposed of the two appeals in the following manner:-
“24. In the result, I hereby quash both the orders dated
10.09.2010 and 15.09.2010 passed by the learned trial Court
and remand the matter back to the learned trial Court.
25. The learned counsel for the appellant strenuously argued
that in the notice under Section 13(2) of the SARFAESI Act a
demand in the sum of `. 1139.75 crores was raised as on
31.07.2009. The learned counsel for the appellant expressed his
apprehension that the words “sweet end” appearing in the
impugned order dated 15.09.2010 meant that the case would
come to an end by merely payment of `. 35crores. The
impugned order dated 15.09.2010 already stands quashed. This
question is also being kept open and it will be considered by the
learned trial Court.
26. The parties are directed to appear before the learned trial
Court on 30.03.2011. The Trial Court would try to expedite this
case. Till then status quo be maintained. The learned trial
Court will decide whether the interim order is to continue or
not. The trial Court will decide the question of limitation and
maintainability of the application first of all.
27. With these observations, the appeals are disposed of.”
5. It is pertinent to note that the Debt Recovery Appellate Tribunal in the
above order had noticed that three issues needed to be resolved by the Debt
Recovery Tribunal. The issues being of limitation, maintainability and
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interim relief. As noticed in paragraph 26 of the Debt Recovery Appellate
Tribunal order it is clear that the parties were directed to appear before the
Debt Recovery Tribunal on 30.03.2011 and the Debt Recovery Tribunal was
also directed to try and expedite the case. It was clearly indicated that “till
then” status quo would be maintained. It was also directed that the Debt
Recovery Tribunal would decide whether the interim order was to continue
or not. This was apart from the direction to the Debt Recovery Tribunal to
decide the question of limitation and maintainability first of all.
6. We find that the petitioner challenged the said order dated 22.03.2011
by way of the W.P. (C) No. 2282/11. However, this court did not disturb the
said order dated 22.03.2011 while disposing of the writ petition by virtue of
its order dated 20.4.2011. In other words, the direction given by the Debt
Recovery Appellate Tribunal by virtue of its order dated 22.03.2011 has
become final.
7. To make it clear, the Debt Recovery Appellate Tribunal had directed
that the Debt Recovery Tribunal would decide the question of whether
interim orders are to continue or not. But, before that it was required to
decide the question of limitation and maintainability of the application. The
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question of limitation was decided on 14.06.2011 by the Debt Recovery
Tribunal by condoning the delay of 290 days in filing the concerned S.A.
(S.A. No.370/2010). Thereafter, the issue of maintainability was also
decided by the Debt Recovery Tribunal on 04.08.2011 by holding that the
said S.A. was maintainable. Being aggrieved by the said order dated
04.08.2011, the petitioner herein preferred an appeal before the Debt
Recovery Appellate Tribunal being Miscellaneous Appeal No. 363/2011 in
S.A. No. 370/2010. By an order dated 23.9.2011 the said appeal was
dismissed and while doing so the Debt Recovery Appellate Tribunal also
generally directed that the Debt Recovery Tribunal may decide the appeal
‘finally and expeditiously’.
8. We may also point out that after W.P. (C) No. 2282/2011 had been
disposed of by this court, an application being CM No. 12263/2011 had been
filed in that writ petition seeking a direction for expeditious disposal of S.A.
No. 370/2010. However, that application was dismissed as withdrawn on
24.08.2011.
9. There is another order dated 30.09.2011 passed in S.A. No. 370/2010
by the Debt Recovery Tribunal-III, Delhi, which was concerned with the
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review application in respect of an order dated 03.08.2011. While disposing
of the said application, the Debt Recovery Tribunal directed, in paragraph 6
of the said order dated 30.09.2011, that all remaining pending IAs shall be
decided at the stage of final disposal in view of the directions passed by the
Debt Recovery Appellate Tribunal, Delhi to decide this matter ‘finally and
expeditiously’. Thereafter, the matter has been directed to be listed for final
disposal on 21.10.2011.
10. We must also point out that even though arguments with regard to the
interim order were heard and orders were reserved and the matter was fixed
for orders on 08.08.11, the same was not pronounced because in the
meanwhile, that is, on 05.08.11, the Presiding Officer of the Debt Recovery
Tribunal-III had changed. Thereafter, no further hearing was conducted in
respect of interim relief by the present Presiding Officer of the Debt
Recovery Tribunal- III and obviously no orders have been passed.
11. Both sides have argued vehemently on the issue as to whether the
Debt Recovery Tribunal should first hear arguments on the interim order or
should take up the matter for final disposal. We find that in the order dated
23.09.2011, the Debt Recovery Appellate Tribunal has, indeed, observed that
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Debt Recovery Tribunal may decide the appeal ‘finally and expeditiously’.
But, we find that that is a general remark. The matter was specifically dealt
with by the Debt Recovery Appellate Tribunal in its order dated 22.03.2011
where specific directions were given with regard to the disposal of issues
concerning limitation, maintainability and interim relief. As already pointed
out above, the issues with regard to limitation and maintainability had been
decided and settled. Insofar as the interim order is concerned there has been
no hearing on that issue and consequently no orders have been passed either
confirming or vacating the interim orders which have been in existence since
10.09.2010.
12. We may recall that by virtue of the order dated 22.03.2011, the Debt
Recovery Appellate Tribunal had specifically directed, despite the fact that
two interim orders dated 10.09.2010 and 15.09.2010 were being quashed,
that status quo was to continue till the Debt Recovery Tribunal decides on
the interim order to be passed. It therefore appears to us that the Debt
Recovery Appellate Tribunal had made it clear that the Debt Recovery
Tribunal should take a decision as to whether it was to continue the interim
order or not. There is no doubt that the Debt Recovery Tribunal has now
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fixed the matter for final arguments on 21.10.2011. However, we are not
sure as to how long the arguments would continue and how long it would
take the Debt Recovery Tribunal to pronounce its decision in S.A. No.
370/2010. There is already an order of the Debt Recovery Appellate
Tribunal directing the Debt Recovery Tribunal to take a decision as to
whether the interim order should continue or not. We feel that that direction
has not yet been complied with. We must also note that in the judgement
and/or order dated 15.02.2011 a Division Bench of this court had taken note
of the decision of the Supreme Court in the case of Kausalya Devi Bogra &
Ors. v. LAC Aurangabad &Anr: 1984 (2) SCC 324, wherein the Supreme
Court had emphasised that a direction issued by a superior court had to be
obeyed by a subordinate court or tribunal. The directions given by the Debt
Recovery Appellate Tribunal by virtue of its order dated 22.03.2011 have
been complied with insofar as the issues regarding limitation and
maintainability are concerned but remain unfulfilled with regard to the issue
of interim orders.
13. In this backdrop, we feel that it would be appropriate to dispose of this
writ petition by directing that the Debt Recovery Tribunal should
immediately take up and decide the issue with regard to continuance of the
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interim order. The Debt Recovery Tribunal shall also, independently of the
question of interim relief, expedite the hearing and disposed of S.A. No.
370/10. We make it clear that we have not expressed any opinion on the
merits of S.A. No. 370/2010.
The writ petition stands disposed of as indicated above.
BADAR DURREZ AHMED, J
VEENA BIRBAL, J
OCTOBER 20, 2011
Kb
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