IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (L) NO.2429 of 2010 International Asset Reconstruction Company Pvt.Ltd in its capacity as Trustee of IARC-BOB-01/07 Trust ..Petitioner vs. Kunstoffee Industries Ltd & ors ..Respondents Mr.F.Divetre Sr.Advocate with Mr.Cyrus Ardeshir and Mr.Nikhil Rajan i.b M/s V.Deshpande & Co for petitioner. Ms.Madhavi Tavanandi for Respondent no. 5 Mr.Arif Bookwala Sr.Advocate with Ms.Kiran Gandhi i.b Little & Co for Respondent no.1 Mr.Shyam Mehta a/w Mr.Mihir Mody, Ms.Luann Crasto i.b K.Ashar & Co for Respondent no.3 CORAM : D.K.DESHMUKH & N.D.DESHPANDE,JJ. DATE :NOVEMBER 23, 2010 P.C. 1. By this Petition, the petitioner challenges the order passed by the B.I.F.R.dated 15th September,2010. The petitioner is aggrieved by the direction No.(iii) contained in paragraph 2.9 of the order which directs the company in relation to whom the reference was registered with the B.I.F.R. to settle the dues of the petitioner at 30 % of the outstanding principal as has been done with other secured creditors. Mr.Bookwalla the learned counsel appearing for respondent no.1 submits that the order of the B.I.F.R.which is challenged in the petition is not a final order. He also submits that the petitioner has an alternate remedy of appeal against this order. It is common ground before us that after the order of the B.I.F.R. dated 15th September,2010 was passed, the company offered an amount of 30 % of the outstanding principal to the petitioner and the petitioner has declined to accept that offer. The learned counsel appearing for respondent no.1 submitted that now that the petitioner has declined to give consent to the scheme and has also declined to accept the offer made to it pursuant to the order of the B.I.F.R. it is for B.I.F.R. to consider whether to sanction the scheme or not to sanction the scheme. 2.From the submissions made by learned counsel for the parties before us, it is clear that no final decision has been taken by B.I.F.R. on the question of sanctioning the scheme. In our opinion, therefore following order would meet the interest of justice: (i) The B.I.F.R. before sanctioning any scheme in relation to the respondent no.1 shall hear the petitioner and shall also consider the question whether in the absence of consent from the petitioner BIFR can under the provisions of S.I.C.A. sanction any scheme? Before us, learned counsel for the petitioner relied on the judgment of the division bench of this Court in the case of ASHOK ORGANIC INDUSTRIES LTD.vs ASSET RECONSTRUCTION COMPANY India) LIMITED 2008 (3) Bom.C.R.78 wherein the division bench has taken a clear view that in the absence of consent given by financial institutions involved who are required to make a sacrifice under the scheme no scheme can be sanctioned by the B.I.F.R. It was submitted that the view taken by the B.I.F.R. in ASHOK ORGANIC INDUSTRIES s case has been approved by the Supreme court in its judgment in TATA MOTORS LTD. vs PHARMACEUTICAL PRODUCTS OF INDIA LTD 2008 (4) Bom.C.R.707 and it was contended that in the absence of consent of the petitioner, no scheme in relation to respondent no.1 which will adversely affect the interest of the petitioner can be sanctioned. In our opinion, as the B.I.F.R. has to hear the petitioner before sanctioning the scheme, it is not necessary for us to consider these submissions. The petitioner shall be free to raise these contentions before the B.I.F.R.and in case these contentions are raised B.I.F.R. shall dispose them of by a reasoned order. 3. Petition is thus, disposed of with a direction to the B.I.F.R. to grant an opportunity of being heard to the petitioner before passing any final order either sanctioning or not sanctioning the scheme. D.K.DESHMUKH, J N.D.Deshpande, J