1 lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4589 OF 2009 Indian Bank : Petitioner. Versus Deve Paints Ltd. & Anr. : Respondents. Mr.Nitin Nikam i/by M/s. Nitin Nikam & Associates for the Petitioner. Mr. P B Shah with Mr.Avinash Singh Gautama with Ms. Mrudula Khedekar i/by M/s. Dhir and Dhiv Associates for the Respondent No.1. CORAM : S B MHASE & R M SAVANT, JJ. DATE : 14th August 2009 P.C. 1. Rule. Rule with the consent of the parties made returnable forthwith. Heard the learned counsel for the parties. The Petitioner is a nationalized bank which has financed Respondent No.1. The Respondent No.1 is a sick unit, therefore, they have approached the BIFR. The BIFR has passed an order dated 3 rd January 2008. In para 20 of the said order directions have been given by the BIFR. We are not concerned with all the directions in the present writ petition, but we are concerned with only Direction No.(vi) which is to the following effect. “Provision of payment of Rs.28 lakhs to Indian Bank by the Company be made in the scheme. 2 The above direction No.(vi) has been given by the BIFR on the basis of the concession recorded by the BIFR in Para 12 of its judgment which is to the following effect :- “The Indian Bank vide its fax dt. 02.01.2009 and in the hearing stated that on 20.12.2003 the Indian Bank sanctioned OTS of Rs.185.51 lacs to the company which was payable @ Rs.157.51 lacs through the Escrow Account from BOM, and remainder of Rs.28 lacs was payable directly by the company. In case of failure to comply the compromise was liable for cancellation. Since the company has accepted the above conditions on 13.03.2004, the representative of Indian Bank requested the Bench to provide for a sum of Rs.28 lakhs as dues payable to Indian Bank in the scheme to be sanctioned in favour of the company. The M.D. Of the company present at the hearing agreed to pay the balance amount of Rs.28 lacs and provide for the same in the scheme.” (emphasis supplied) The BIFR therefore gave the aforesaid direction on the basis of the concession made by the M.D. Of the Respondent No.1. The said part of the order was challenged by the Respondent No.1 by filing an appeal before AIFR and the AIFR has set aside the said direction by merely observing that the concession has been rebutted in appeal memo and by 3 saying it is wrongly recorded and it is erroneous and contrary to the record of the case. 3. In fact when any concession is made by a party before any Court of authority and if the said party wants to resile from the said concession or to withdraw the said concession on the ground that it is wrongly recorded by the said Court or authority, the said party is expected to approach the Court ot authority which has recorded the concession. In the present matter, instead of filing an appeal, the Respondent No.1 should have approached the BIFR for deletion of the said direction issued on the basis of the said concession. The appeal itself was not tenable. The Appellate Authority also should have directed the Respondent No.1 to approach the BIFR since the concession has been recorded by the BIFR. It is well settled principle of law in view of the judgment of Apex Court in the matter of Ram Bali v/s State of UP reported in AIR 2004 SC 2329 that if the concession is to be withdrawn or a party wants to resile from the earlier concession on the basis that it is wrongly recorded the said party is to approach the same court or authority before whom the said concession was made and recorded. In para 9 of the above referred Judgment the Apex Court has held as under :- 4 “Para-9 We notice that the High Court specifically records that only two points were urged before it. It has to be noted that the statement as to what transpired at the hearing, the record in the judgment of the Court are conclusive of the facts so stated and no one can contradict such statement on affidavit or by other evidence. If a party thinks that the happenings in court have been erroneously recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the judges who have made the record, to make necessary rectification. That is the only way to have the record corrected. It is not open to the appellant to contend before this Court to the contrary.” In the said factual and legal position, the above Petition deserves to be allowed and it is accordingly allowed. The impugned order passed in Appeal No.100 of 2008 by the Appellate Authority of Industrial and Financial Reconstruction is hereby set aside. Respondent No.1 is at liberty to approach the BIFR by filing an appropriate application in respect of the said concession. The said application to be preferred with a period of six weeks from date. If such an application is preferred, the BIFR will dispose of the same expeditiously in accordance with law and if the said 5 application is not preferred within the period of six weeks, the order of the BIFR impugned in the present Petition will become operative. The Petition is allowed by making the Rule absolute to the aforesaid extent. [R.M.SAVANT, J] [S.B.MHASE, J]