IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. ORDER 20.10.2008. S.B. CIVIL WRIT PETITION NO.3106/2007 Amernath Goenka & Ors. Vs. Shanti Lal and Anr. HON'BLE MR. JUSTICE DALIP SINGH Shri Abhay Bhandari, Senior Counsel assisted by Shri Anant Bhandari, for the petitioners. Shri R.P. Garg, for the respondent. Heard the learned counsel for the parties. The petitioners have challenged the order dated 10.4.2007 by which the application dated 6.11.2006 filed under Section 22 of the Sick Industries Act 1985 has been dismissed and at the same time the right of the petitioner to file the written statement has also been closed. The facts in brief are that the present suit came to be filed by the respondent for recovery of Rs.4,21,600/- against the petitioner on 30.5.1998. The suit came to be decreed by the learned trial court exparte vide judgment and decree dated 19.5.2003. The petitioner defendant filed an application under order 9 rule 13 C.P.C. for setting aside the exparte decree which came to be dismissed by the learned trial court. Against which the defendant preferred S.B. Civil Misc. Appeal No.1395/2004 challenging the order dated 11.3.2004. This court allowing the said misc. appeal observed and directed as follows : Therefore, we quash and set aside the order dated 11.3.2004 and allow the application of the appellants under O. 9 R. 13 of the Code. We also set aside the judgment and decree dated 19.5.2003, and direct the learned court to grant opportunity of hearing to the appellants provided they pay cost of Rs.30,000/- to the respondent. Since the case has been hanging fire since 1998, the trial court is directed to decide the case within a period of six months from the date of receipt of the record from this court. The appellants are also directed to appear before the trial court on 6.11.2006. The trial court is further directed to record the evidence on day to day basis; the parties are directed to co-operate with the trial court for early decision of the case within the stipulated period of six months. With these directions, this appeal is allowed.” (emphasis supplied) After the above order was passed by this court allowing the appeal and setting aside the exparte decree the petitioner defendant instead of filing his written statement moved an application under Section 22 of the Sick Industrial Companies (Special Provisions) Act 1985 for stay of proceedings. Application under order 7 rule 1 C.P.C. was also filed but no written statement has been filed before the learned trial court. These applications came to be filed on 6.11.2006 and thereafter case has been posted on several dates i.e. 5.4.2007, 6.4.2007, 10.4.2007 and 16.4.2007 when impugned order came to be passed by the learned trial court. So far as the contention of the learned counsel for the petitioner defendant with regard to the application under Section 22 of the Act of 1985 is concerned the learned counsel for the respondent has pointed out the contents of the reply filed by the petitioner to the application for vacation of the interim order passed by this court in this writ petition. In para 2 it has been stated by the petitioner as follows : “A. xxx B. xxx C.xxx D. The Draft Rehabilitation Scheme submitted by the Ld. BIFR in the hearing held on January 03, 2008 wherein the Ld. BIFR was pleased to order with regard to Unsecured Creditors that they be settled after payment of OTS (One Time Settlement) amount to the Company's Secured Creditors. The unsecured creditors/lenders were directed to be paid @ 20% of principal amount, without any interest, during the year 2008-09 on pro rata basis in equated quarterly installments. The amount of unsecured creditors to be paid @ 20% of principal being paid to company's bankers, i.e. Secured Creditors. E. The Ld. BIFR were further pleased to order in Para F(ii) tht the statutory liabilities/liabilities of the Un-secured Creditors, which are reported to be under litigation, would be settled/paid, after resolution of the litigation and the settlement/payment of these liabilities would be done, within a period of one (1) year, in the manner as has been proposed for the settlement/payment of the dues of the other un-secured creditors i.e. As mentioned in para F(i) above. F. xxx G. xxx” On the basis of the contents of paras 2 (D) and (E) of the reply filed by the petitioner the learned counsel appearing on behalf of the respondent contended that the BIFR had categorically provided in its order dated 3.1.2008 that so far as the statutory liability of unsecured creditors which was under litigation was to be settled after resolution of the litigation and the settlement/payment was to be done within a period of one year in the manner as has been proposed. It is contended on the basis of the above that the BIFR while framing this scheme in its order dated 3.1.2008 had taken a note of the fact that certain claims of unsecured creditors was under litigation and therefore instead of directing the stay of these cases it had merely directed that the claims of these unsecured creditors which were under litigation were required to be settled after “resolution of the litigation” It is submitted that the words “after resolution of the litigation” clearly indicates that there was to be no stay of the trials and on the contrary to the disputes were to be resolved in the on going litigation. Having considered the submissions made before this court I am of the view that the contention of the learned counsel for the respondent in the facts and circumstances more particularly in the light of the terms of clause D and E of the para 2 of the reply on the basis of the order dated 31.8.2006 passed by the learned BIFR there was no occasion for the stay of the litigation in the present suit. On the contrary it has been provided that the claims were to be settled in accordance with the adjudication of the claims which were pending before the court i.e. “after resolution of the litigation” in terms of the decree. In the light of the order passed by this court a copy of the Annexure-5 along with the reply. There is no case so far as the applicability under Section 22 for staying of the proceedings in the present case are concerned the application filed by the petitioner was rightly therefore dismissed by the learned trial court. So far as the second part of the order is concerned relating to right of the defendant petitioner to file the written statement is concerned, I am of the view that the learned trial court has not committed any error in refusing the prayer of the defendant petitioner to file written statement. As has been stated this court while remanding the case to the learned trial court has directed that the trial court shall proceed with the trial on a day to day basis and complete the trial within a period of Six months from the receipt of the record and the parties had been directed to appear before the learned trial court on 6.11.2006. This court had taken note of the fact that the litigation was an old one and further the application for setting aside the decree passed exparte on 19.5.2003 had been allowed on the costs of Rs.30,000/- which is exemplary. It was expected that the petitioner defendant should have taken note of the above facts and should have realised that the court had in fact allowed him an opportunity to defend the claim and should have filed the written statement on the first day itself i.e. on 6.11.2006 instead the defendant has chosen to file objections to the maintainability of the suit. Needless to say that these objections could also have been taken in the written statement itself. The defendant petitioner has therefore flouted the orders passed by this court while allowing the misc. appeal vide judgment dated 12.10.2006 and has misused the liberty which goes to show that in facts and circumstances the defendant petitioner is only interested in delaying the proceedings rather than resolving the dispute. In the facts and circumstances I find no good ground to interfere in writ jurisdiction under Articles 226 and 227 of the Constitution of India. There is no jurisdictional error having been committed by the learned trial court. This writ petition is accordingly dismissed. The interim order stands vacated. The application under Article 226 (3) of the Constitution of India is also disposed of. (DALIP SINGH),J. Ramchandrkhatri,PS