1 wp10101.10.sxw IN THE HIGH COURT OF JDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 10101 OF 2010 Oman International Bank S.A.O.G. ...Petitioner. Vs. Biogenics India Ltd. & Anr. ..Respondents. Mr. Rajeev F. Pandey with Prachi Raj Mhatre i/by M.S. Bodhanwalla & Co. for the Petitioner. Mr. Sean Wassoodew for the Respondents. CORAM : DR. D.Y. CHANDRACHUD AND A.A. SAYED, JJ. DATE : 2ND SEPTEMBER, 2011. P.C. 1. Rule. With the consent of the Learned Counsel, the Petition is taken up for hearing and final disposal. Learned Counsel for the Respondents waives service. 2. This petition under Article 226 of the Constitution is directed against an order passed by the Debt Recovery Appellate Tribunal dated 8 December 2010. While allowing a Miscellaneous Application (M.A.No. 578 of 2008) instituted by the First Respondent, the DRAT issued the following directions: "The amount of Rs. 46,66,386/- is deposited by the Appellant towards full and final satisfaction of the decree passed 2 wp10101.10.sxw by DRT-II, Mumbai, on 21-12-2004 in Original Application No. 1517/2000. In view of this order, the Appeal Nos. 144/2005 and 131/2005 have become infructuous and nothing survives in the said Appeals. Needless to say that this is subject to the order by the Hon'ble Supreme Court of India in Special Leave Petition (Civil) No. 18207/2006 and Petition for Special Leave to Appeal (Civil) (CC 17358/2010)." Counsel appearing on behalf of the Petitioner has pressed this challenge to the aforesaid direction only to the extent that it disposes of the appeal No. 131 of 2005 as having become infructuous. That was an appeal filed by the Petitioner, Oman International Bank against the order of the Debt Recovery Tribunal. 3. The Debt Recovery Tribunal, by an order dated 27 December 2004, allowed an application filed by the Petitioner against the Respondents and decreed the claim of the Petitioner in the amount of Rs. 1.29 crores together with interest at the rate of 13.5% p.a. from April 1993 until payment or realization. The amount was held to be secured by a mortgage of certain immovable property of the First Respondent. The order passed by the Tribunal was challenged before the Debt Recovery Appellate Tribunal both by the Petitioner as well as by the First and Second Respondents. The appeal filed by the Petitioner is Appeal No. 131 of 2005, while the appeal filed by the First and Second Respondents is Appeal No. 141 of 2005. 4. On 22 May 2006 in proceedings under the Sick Industrial Companies (Special Provisions) Act, 1985, the AAIFR passed an order under which the Petitioner was held to be entitled to the payment of an amount of Rs. 22.44 3 wp10101.10.sxw lacs together with interest at the prime lending rate in satisfaction of its dues under a scheme for revival. The AAIFR directed that the implementation of the scheme would be revived by the BIFR after 60 days of the order and thereafter, on the basis of a review, further appropriate action would be taken by the BIFR in accordance with law. The order of the AAIFR was challenged before the Delhi High Court which dismissed a petition thereon on 11 August 2006. On 29 October 2007 the Supreme Court admitted the Special Leave Petition filed by the Petitioner but declined to grant interim relief. Before the Supreme Court, the Petitioner sought a stay of the order passed by the AAIFR of the scheme which was sanctioned in respect of the First Respondent. No interim relief has been granted by the Supreme Court. Thereafter, by an order dated 11 June 2008 the AAIFR called upon the promoter of the First Respondent to deposit the balance OTS dues of the Petitioner from the last date of payment along with interest thereon at the prime lending rate from 22 May 2006 till the date of the order, with the DRAT Mumbai towards full and final satisfaction of the decree passed by the DRT in favour of the Petitioner. A petition before the Delhi High Court to challenge the order of the AAIFR was dismissed on 6 May 2010. On 22 November 2010, the Supreme Court, in a Special Leave Petition filed by the Petitioner, directed that the petition shall be tagged with the Civil Appeal arising out of the earlier order of the Delhi High Court. 5. In pursuance of the directions that were issued by the AAIFR in its order dated 11 June 2008, a Miscellaneous Application was taken out by the First and Second Respondents before the DRAT seeking the following reliefs : 4 wp10101.10.sxw "(a) that this Honourable Tribunal may be pleased to permit the Appellant to deposit in this Hon'ble Tribunal in compliance of the order of AAIFR issued on 23 June 2008 towards full and final satisfaction of this decree passed by DRT on 21st December, 2004 as under : (i) Draft No. 024940 for Rs. 27,43,633/- (Rupees Twenty Seven Lakhs Forty Three Thousand Six Hundred and Thirty Three only) being the balance principal amount of the OTS. (ii) Draft No. 025545 for Rs. 12,25,048/- (Rupees Twelve Lakhs Twenty Five Thousand and Forty Eight only) being the interest as per the AAIFR order of 22.05.2006. (iii) Draft No. 025546 for Rs. 6,97,705/- Rupees Six Lakhs Ninety Seven Thousand Seven Hundred and Five only) being the interest as per the AAIFR order issued on 23-06-2008." By an interim order dated 26 June 2008 the DRAT allowed the First and Second Respondents to effect the deposit as prayed in pursuance of the order of the AAIFR without prejudice to the rights and contentions of the Petitioner as regards the quantum of the dues and also subject to (i) the right of the Petitioner to challenge the order of the AAIFR; and (ii) the special leave petition which was stated to be filed before the Supreme Court. The application was eventually allowed by the impugned order of the DRAT on 8 December 2010 with a direction that the amount of Rs. 46,66,386/- deposited by the First and Second Respondents was in full and final satisfaction of the decree passed by the Debt Recovery Tribunal on 22 December 2004. 6. Counsel for the Petitioner submitted that the Petitioner is aggrieved by the impugned order only in so far as it disposes of the appeal, Appeal No. 5 wp10101.10.sxw 131 of 2005, as infructuous. 7. On behalf of the Petitioner it has been submitted that the sanctioned scheme is admittedly still under implementation. Since the First Respondent is, before the BIFR, in a proceeding under Sick Industrial Companies ( Special Provisions) Act, 1985, it was urged that under section 22(1), the appeal which was a continuation of the original proceeding could not have been proceeded with. Hence, Counsel appearing on behalf of the Petitioner submits that while the Petitioner cannot and does not intend to obstruct the implementation of the sanctioned scheme, having regard to the fact that the Supreme Court has not granted any interim relief staying the implementation of the scheme, there was no reason or justification for the DRAT to dispose of the appeal. 8. Counsel appearing on behalf of the Respondents submitted that the order of the deposit of an amount of Rs. 46,66,386 was in compliance with the direction issued by the AAIFR on 11 June 2008 which has not been stayed. Hence, it is submitted that the order disposing of the appeals is only consequential. 9. In the earlier part of this order, we have already adverted to the fact that following the dismissal of a petition filed by the petitioner before the Delhi High Court to challenge the order of the AAIFR dated 22 May 2006, a special leave petition was admitted by the Supreme Court. Interim relief was specifically sought before the Supreme Court. The Supreme Court on 29 October 2007 while granting leave, declined interim relief. Therefore, the AAIFR in its order dated 11 June 2008 directed the promoter of the First 6 wp10101.10.sxw Respondent to pay the balance OTS dues of the Petitioner. In pursuance thereof, the First and Second Respondents moved an application before the DRAT for deposit. The DRAT was justified in permitting the deposit to be made. There is no dispute before this Court that the amount deposited represents the balance which is due and payable under the order of the AAIFR. 10. However, as we have noted earlier, the limited grievance of the Petitioner is that the appeal could not have been disposed of by the DRAT. On this aspect of the matter, we find merit in the contention which has been urged on behalf of the Petitioner having regard to the provisions of Section 22(1), it being again not in dispute that the sanctioned scheme is still under implementation and the First Respondent is, still before the BIFR, in the proceedings under the Sick Industrial Companies (Special Provisions) Act, 1985. As a matter of fact, the reliefs sought before the DRAT in M.A. No. 578 of 2008 did not specially seek the disposal of the appeal filed by the Petitioner. Hence, during the course of the hearing of this petition, Counsel appearing on behalf of the First and Second Respondents has not contested the submission which has been urged on behalf of the Petitioner that the disposal of the appeal filed by the Petitioner before the DRAT was in error. 11. Accordingly, we dispose of this petition by modifying the order of the DRAT dated 8 May 2010 in so far as it disposes of Appeal No. 131 of 2005 as having become infructuous. The order to that extent is set aside and Appeal No. 131 of 2005 filed by the Petitioner is restored to the file of the DRAT. The appeal shall however, stand adjourned sine die, pending the implementation of the scheme. The DRAT has already clarified by its 7 wp10101.10.sxw impugned orders that the order is subject to the orders that may be passed by the Supreme Court. 12. The petition is accordingly disposed of. There shall be no order as to costs. ( A.A. SAYED, J. ) (DR. D.Y.CHANDRACHUD, J.)