IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE WRIT PETITION NO. 3453 OF 2009 WRIT PETITION NO. 3453 OF 2009 WRIT PETITION NO. 3453 OF 2009 BIL Industries Ltd. ... Petitioner. V/s. Union of India & another. ... Respondents. Sushil R. Tekriyal with Rajeev Pandey i/b. PRS Legal for the petitioner. S.V.Bharucha with N.R.Prajapati for respondent No.1. D.D.Madan, senior counsel with Ayaz Bilawala i/b. Bilawala & Co. for respondent No.2. CORAM: V.C.DAGA and CORAM: V.C.DAGA and CORAM: V.C.DAGA and MRS.MRIDULA BHATKAR, JJ. MRS.MRIDULA BHATKAR, JJ. MRS.MRIDULA BHATKAR, JJ. DATED: 25th March 2009. DATED: 25th March 2009. DATED: 25th March 2009. P.C.: P.C.: P.C.: ---- ---- ---- . Heard learned counsel for the rival parties. . Perused petition. 2. This petition, filed under Articles 226 and 227 of the Constitution of India, is directed against the order dated 17th February, 2009 passed in Appeal No.360/2007 by the Debt Recovery Appellate Tribunal at Mumbai ("D.R.A.T." for short) dismissing the appeal in default, since nobody was present on behalf of the appellants when the matter was called out for hearing. The Factual Matrix : The Factual Matrix : The Factual Matrix : ------------------ ------------------ ------------------ 3. The factual matrix reveals that the petitioners, after having suffered the above order of dismissal of their appeal in default, have already filed an application for restoration on 17th March, 2009 and the said application is pending for hearing before the D.R.A.T. 4. The petitioners state that they had moved the Chairman of the D.R.A.T. to take up the matter on board for urgent consideration. However, according to the allegations in the petition, learned Chairman of the D.R.A.T. has directed that the application for restoration be listed in due course. 5. It is further stated in the petition that the properties attached are the subject matter of auction sale scheduled to be held on 25th March, 2009. It is, thus, urged that unless the sale is stayed, it may create third party interest over the subject properties and would make the appeal infructuous. It is, therefore, prayed that the order dated 17th March, 2009 be set aside and directions be issued to the D.R.A.T. to decide the restoration application with immediately effect. Prayer for interim relief is also made to stay the order dated 17th February, 2009 pending hearing and - 3 - final disposal of the petition. Submissions : Submissions : Submissions : ----------- ----------- ----------- 6. Learned counsel appearing for the petitioners made submission based on the aforesaid pleadings and pressed into service the prayer clause praying for ad-interim relief. 7. The petition is strongly opposed by Mr.Madan, learned senior counsel appearing for respondent No.2 contending that there is a recovery of more than Rs.65 crore against the petitioners and that by hook or crook the petitioners are trying to prolong the recovery. He further submits that the appeal filed by the petitioners required them to deposit 50% of the amount due and recoverable from them. Neither such deposit was made by the petitioners nor any application for waiver of the deposit was ever made by them though interim relief obtained by the petitioners operated in their favour right from 1st November, 2007, practically, for a period more than one year. He further submits that on 17th February, 2009, when the matter was called out, nobody was present on behalf of - 4 - the appellants. He further submits that the restoration application is pending before the D.R.A.T. as such the present petition is not maintainable. He, thus, prayed for dismissal of the petition in limine the same being without any substance. Consideration : Consideration : Consideration : ------------- ------------- ------------- 8. Having heard both parties, it is necessary to place on record that the petition filed by the petitioner is a sketchy petition. It does not disclose all the material facts and particulars leading to dispute involved in the D.R.A.T. proceedings. No reason is disclosed as to why the petitioner did not deposit 50% of the amount along with appeal which was required to be deposited under section 18 of the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. It is also not disclosed as to why application for waiver was not filed and necessary orders were not obtained. The petitioners, after having obtained interim relief from the D.R.A.T. on 1st November, 2007 did not bother to take any step in this behalf almost for a period of more than one year. - 5 - When the matter was called out for hearing, nobody was present on behalf of the petitioners/ appellants therein which resulted in dismissal of the appeal as such no fault can be found with the impugned order. 9. Learned counsel for the petitioners has stated that the application for restoration is pending before the D.R.A.T. and request was made to learned Chairman of D.R.A.T. to hear the matter with expeditious despatch. However, no such date is mentioned as to when such prayer was made and when it was turned down. No evidence in this behalf is produced on record. 10. Be that as it may, the recovery against the petitioners is running into crores. Even if a reduced rate of interest on the outstanding dues is worked out after giving credit of part of the recovery made from the petitioners, still the liability would not be less than Rs.35 to 40 crore. 11. In the above view of the matter, during the course of hearing we enquired from the learned counsel appearing for the petitioners as to how much amount he could deposit so that one more opportunity could be - 6 - given to the petitioners restoring their appeal. The learned counsel for the petitioners came out with a conditional offer to deposit about Rs.40 lakh only, that too, subject to the grant of absolute stay of the proposed auction, though it was made clear that the subject auction will proceed but final bid would not be accepted until restoration prayer is heard. The learned counsel for the petitioners on hearing our view withdrew his offer to deposit and left the matter to the discretion of this Court. 12. In the above view of the matter, we were left with no option but to consider the matter on its own merits taking into account the stiff stand taken by the petitioners. 13. Having given thoughtful consideration to the rival submissions and considering huge recovery of the outstanding dues and intention of the petitioners not to deposit any amount or part of the amount to show their bonafides, we do not think we would be justified in assuming jurisdiction of the D.R.A.T. The restoration application is pending before the D.R.A.T. There is no material on record to suggest that the - 7 - Chairman of the D.R.A.T. refused to hear the application for restoration with expeditious despatch for want of any order in this behalf on record. We do not think we would be justified in interfering with sale process by stalling scheduled auction. We, therefore, refuse to entertain this petition. 14. However, we make it clear that this order shall not come in the way of the petitioners in seeking restoration of their appeal on its own merits. We hope that the D.R.A.T. will consider the prayer of the petitioners for restoration with expeditious despatch in the event such prayer is made, uninfluenced by the observations made herein. 15. In the result, petition is dismissed in limine with no order as to costs. (MRIDULA BHATKAR, J.) (V.C.DAGA, J.) (MRIDULA BHATKAR, J.) (V.C.DAGA, J.) (MRIDULA BHATKAR, J.) (V.C.DAGA, J.)