Mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITON NO.453 OF OF 2008 M/s.Fabina Textiles Pgt. Ltd. ..Petitioners Vs. 1.Directorate of Industries & Ors. ...Respondents Mr. S.C. Mangle i/b. Swati Sawant for the petitioner. Mr. Deepak Rai with Mr. Suresh Kumar for respondent No.10 Mr. S.A. Shetty for respondent No.6. CORAM : F.I. REBELLO & A.A. SAYED, JJ. DATED : 8th April, 2010 P.C. The petitioner company was before BIFR. On 12th March, 1990 an application was filed bearing No.5190 under Section 16 of the Sick Industrial Companies Act, hereinafter referred to “SICA”. The petition was admitted on 12th September, 1990. On 12th September, 1992 according to the petitioners a rehabilitation scheme for the revival of the petitioner company was sanctioned. The said scheme and other schemes failed to fructify for various reasons. The promoters, it is set out, infused additional funds into petitioner company and repaid and/or settled all the outstanding undisputed liabilities of the petitioner company including that of the Corporation Bank, respondent NO.6 to this petition. On 12th December, 2005 the Corporation Bank which was a secured creditor issued certificate that their dues are fully settled by the petitioner company and as of that day there are no secured creditors. It is set out that there are no negative cash flows and it repaid all accepted and secured debts and there is no incremental increase in the liabilities. The petitioner company, it is set out, has assets like factory land and building which is without any charge or encumbrances and use for the revival of the business of the petitioner company. On account of infusion of funds by the promoters and appreciation in the value of the assets in the intervening period and, therefore, the net worth of the petitioner company is no longer negative and the real value of the assets of the petitioner company is far in excess of the liabilities if any of the petitioner company. According to the petitioners the respondent No.3-BIFR without taking into consideration the reply filed by them was pleased to pass the impugned order on 5th October, 2006 recommending to this Court to wind up the petitioner company (Company Court) the petitioner was not present at the time of hearing of the case by Respondent No.3. The promoters were directed in terms of Section 22A(b) to safeguard the assets till such time the official liquidator took over possession of the same. 2. Being aggrieved and dissatisfied by the order an appeal was preferred being Appeal No.75 of 2007 under4 Section 25 of the SICA before the Appellate Authority. The Appeal was preferred beyond the prescribed period of limitation and further time within which the condonation could have been considered. The Appellate Tribunal finding that it had no jurisdiction beyond the specific period for condonation of delay dismissed the appeal on 13th April, 2007. This petition was lodged on 27th November, 2007. The matter has been heard over several days and we have also permitted the petitioners to produce additional affidavits which they have filed, one such affidavit is dated 7th April, 2010. 3. Before going into the controversy we may only consider the reasons given by BIFR for winding up of the company on the ground that prima facie it was of the opinion that it would be just, equitable and in the public interest. The BIFR noted that all efforts for revival of the company having thus failed inspite of ample time and opportunity and the absence of a viable rehabilitation proposal has prima facie come to the opinion that the company was not likely to make its net worth exceed its accumulated losses within a reasonable time while meeting all its financial obligations. The matter was fixed on 5th October, 2006 for hearing objections/suggestions to the winding up notice. On behalf of the Corporation Bank the bank informed BIFR that their dues have been paid through OTS. They also stated that they have no objection for winding up of the company. The company itself was unrepresented though they were intimated by intimation dated 18th September, 2006 of the hearing. The BIFR observed that this will indicate lack of interest on the part of the promoter for the revival of the company. On behalf of the Maharashtra State Electricity Board they submitted that their dues had not been settled and they had no objection for winding up of the company. The Bench observed that the company had sold the company assets at Chiplun for real estate development which was a serious misconduct as no permission was granted by the Bench for selling the assets. Further the dues of sundry creditors amounting to Rs. 48.88 lacs besides write back of excess provisions amounting to Rs.78.44 lacs without giving justification and without consent of sundry creditors and then revalue its fixed assets to make the net worth positive and requested for discharge from the purview of SICA. The Bench observed that considering the submissions made by the secured creditors and the background of the case as per the information on file, it was not possible to work out any acceptable revival scheme which could have enabled the company to turn its net worth positive within a reasonable time frame while discharging all its due financial obligations and, therefore, the order. 4. At the hearing of this petition on behalf of the petitioner learned Counsel submits that they were not heard. The petitioners cannot complain that they were not heard as they had notice of the hearing, but chose not to participate in the proceedings. Even otherwise they did not move the BIFR after coming to know of the order for setting aside the ex-parte order on the ground of sufficient cause for not appearing on the day when the order was passed ex-parte. The learned Counsel sought to contend that the findings were perverse. We had called on the learned Counsel to show us a copy of the order where they had taken permission of BIFR to sell the factory assets. The only answer is only part of the land has been sold. Once a company is before BIFR and application is entertained and considering the orders earlier passed no assets could have been disposed off without consent of the BIFR though it is the contention of the petitioners that amounts realised have been paid to the secured creditors. The other aspect of the matter is in respect of sundry creditors without obtaining the sanction from the Company Court or BIFR the dues of the sundry creditors were written off. There is no explanation for the same. Even before this Court nothing has been pointed out as to how the company can be revived. The present petition appears only to secure the assets that they have sold and proceeds realised. 5. In our opinion it is not possible to go into the facts considering that the petitioner had an opportunity which they have not availed off. Even the Appeal was filed beyond time. If the petitioner have any contention and if they are available they can raise the same before the Company Court. 6. In the light of that nothing survives in this petition, which is accordingly dismissed. (A.A. SAYED, J.) (F.I. REBELLO,J.)