1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR Civil Application No. 2445 of 2011 AND Civil Application No. 73 of 2011 AND Writ Petition No.3441 of 2010 [Sricon Infrastructures Pvt. Ltd. & two others Vs. Bank of India and others] Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. Awadhoot Purohit, Adv., for respondent nos. 1 and 4. Mr. M.V. Samarth, Adv., for petitioners. Mr. S.G. Loney, Adv., for respondent nos. 2 and 3. Mr. Akshay Naik, Adv., for applicant in Civil Application No. 74 of 2011. ---- CORAM : B.P. DHARMADHIKARI AND A.P. BHANGALE, JJ. DATE : 27th September, 2011. 1. Heard. Seen the orders of this Court dated 7th September, 2010, 5th April, 2011 and the provisions in Article 7 of Tripartite Agreement between Govt. of Maharashtra, Petitioners and respondent no.1. 2. It appears that Tripartite Agreement empowered respondent no.1 to recover its outstandings directly from the State Govt. This fact also appears to have been recognized by this Court in is orders dated 7th September, 2010 and 5th April, 2011. 2 3. This Court on 24th June, 2011 has directed the State Govt. to deposit an amount of Rs.8,40,17,162-00. Mr. Loney, learned Special Counsel appearing for respondent nos. 2 and 3, has contended that, that tripartite is not binding upon State Govt or respondents, as it is not signed by any of them. He further points out that though a cheque for the amount ordered to be deposited has been handed over to Registry of this Court, it is yet to be honoured. 4. According to Mr. Purohit, in view of these developments, nothing is left in the petition and respondent no.1 should be allowed to appropriate the entire amount being deposited by respondent nos. 2 and 3 in compliance with order dated 24th June, 2011. 5. Mr. Samarth relies upon the Judgment of Hon ble Apex Court in case of Sardar Associates and others Vs. Punjab & Sind Bank & others [(2009) 8 SCC 257], to urge that petitioners have sought one-time settlement and it is their right to have it considered in accordance with law. However, the same has been arbitrarily rejected and that rejection forms subject-matter of Writ Petition No. 4704 of 2011. He points out that on 21st September, 2011, this Court has issued notices and matter is now placed on 5th October, 2011. According to him, if complete amount is allowed to be withdrawn/appropriated 3 by respondent no.1, OTS proposal submitted by the petitioners is materially affected. In the alternative and without prejudice, he contends that in view of deposit and subsequent developments, the communication dated 17th July, 2010 [Annex.VI with the petition] needs to be set aside. 6. Mr. Purohit for respondent nos. 1 and 4 states that amount outstanding and disclosed to this Court has been further loaded with future interest and, therefore, the amount recoverable has increased. He further states that appropriate Original Application is, therefore, filed by respondent no.1 before Debts Recovery Tribunal and recovery of that amount is also sought. He contends that respondent no.1-Bank being a secured creditor, is entitled to take recourse to Securitization and Re-construction of Financial Assets & Enforcement of Security Interest Act, 2002. 7. After hearing respective counsel, as we find that the respondent no.1 is entitled to receive the amount of Rs.8,40,17,162-00 [rupees eight crores forty lakhs seventeen thousand one hundred and sixty two only], we permit respondent no.1 to withdraw the same and appropriate it towards the loan account of petitioners. However, same shall be without prejudice to rights of petitioners to prosecute further Writ Petition No. 4704 of 2011. Mr. 4 Purohit has fairly stated that if in Writ Petition No. 4704 of 2011 any orders are passed which require respondent no.1-Bank to refund any amount to petitioners, the same shall be returned to petitioners within a period of two weeks in accordance with the provisions of law. 8. It is apparent that the challenge to communication dated 17th July, 2010 is also rendered infructuous in view of these developments. However, that does not mean that respondent no.1-Bank is estopped from proceeding further to recover its alleged amounts still outstanding and recoverable from petitioners. Said recoveries can be proceeded further in accordance with the provisions of law. 9. Mr. Samarth states that respondent nos. 1,2 and 3 have not deposited interest amount calculated at 14 per cent. He invites our attention to order dated 4th May, 2010 passed by Chief Engineer as Appellate Authority. Mr. Loney states that there is no such liability or obligation upon respondent nos. 2 and 3. 10. We find that in view of this dispute, petitioners could have taken recourse to arbitration. Mr. Samarth, however, fairly points out that earlier that recourse was sought and in view of developments in present Writ Petition, the same was required to be given up. He invites attention to orders dated 5th April, 5 2011 for said purpose. 11. Said order specifically observes that petitioners should withdraw arbitration proceedings forthwith and time was given till next date for that purpose. Accordingly on 19th April, 2011, this Court has recorded a statement that the petitioners did not wish to prosecute arbitration and a Pursis dated 18th April, 2011 to that effect was also filed before this Court. Perusal of Pursis shows that it is conditional upon respondent no.3 depositing entire amount as quantified by Appellate Authority in its order dated 4th May, 2010. 12. As the liability to pay interest is in dispute, we permit the petitioners to take recourse to arbitration proceedings as requested by learned Adv. Mr. Samarth for petitioners. 13. Thus, without prejudice to rights of parties in pending Original Application before Debts Recovery Tribunal and in pending Writ Petition No. 4704 of 2011, as also subject to statement of respondent no.1  Bank noted above, we dispose of present Writ Petition as also Civil Application. Needless to mention that defences available to parties in this respect are open. 14. Civil Application [CAW] No. 73 of 2011 is disposed of in view of this order. 6 Civil Application No. 74 of 2011 : This application is filed by a Company for joining it as party-respondent, claiming that it has also advanced loan to petitioners. The petitioners have not opposed this application. However, the grievance in this matter is between petitioners-borrowers and the secured creditor. Hence, with liberty to applicant-Company in this Civil Application to take such steps as are open to it in law, we dispose of the application. Judge Judge |Hedau|