This petition was disposed of by me in limine upon hearing the counsel for the petitioner vide order dated 17.5.2012.
Application No.267785 of 2012 has been moved to recall the above order along with an application to condone the delay in filing the recall application. The applications fail to disclose the name of the applicant but it has been pointed out that it is a clerical mistake and the applications are on behalf of one Ghanshyam Sharda which is evident from the Vakalatnama accompanying the aforesaid applications.
The aforesaid applicant is not a party to the writ petition. There is no application on his behalf seeking impleadment as one of the respondents in the writ petition. Notwithstanding the above, as the application is primarily for recall of my order, I have to see if the circumstances exists for its recall.
I have heard Sri Shashi Nandan, Senior Advocate assisted by Sri Kartikya Saran, learned counsel for the applicant, Sri Manu Khare, learned counsel who has put in appearance on behalf of respondent No.2 and Sri Swapnil Kumar, learned counsel who appears for the petitioner.
The first and foremost argument of Sri Shashi Nandan is that the applicant was permitted to be impleaded as one of the parties in the proceedings before the AAIFR vide order dated 18.3.2010. The challenge to the said order failed before the Delhi High Court which dismissed the writ petition in this regard on 8.3.2011 and Special Leave Petition against the same was also dismissed. Therefore, the petitioner ought to have arrayed as one of the respondents in the writ petition and the failure to do so reflects on his conduct.
Secondly, he submits that pursuant to the order of the AAIFR dated 26.8.2009 proceedings were drawn for its implementation before the BIFR who had passed an order dated 4.10.2011 in that connection in view of which the directions as prayed for in the writ petition were futile.
Lastly, he submitted that the order of this Court disposing of the writ petition is being taken to mean otherwise and on its basis the BIFR has passed an order dated 20.7.2012 which is in conflict with its earlier order dated 4.10.2011 and is adverse to the interest of the applicant.
Sri Khare and Sri Swapnil Kumar both have opposed the above recall application of the applicant contending that the order disposing of the writ petition is nothing but an order directing compliance of the order of the AAIFR dated 26.10.2009 which does not cause any prejudice to the applicant. The order of the AAIFR dated 26.8.2009 has become final as a petition challenging it had been dismissed by this Court on 5th July, 2011. It is also submitted by them that the applicant is only one of the Directors in the company/respondent No.2 and has no individual right in the matter. He is not allowing the BIFR to formulate and finalise the rehabilitation scheme despite the company/ respondent No.2 having been declared to be a sick company as far back as on 16.12.1994.
In the writ petition only one prayer was made i.e. for issuance of a direction in the nature of mandamus to the BIFR to circulate, finalise/sanction the rehabilitation scheme in respect of respondent No.2 in Case No.149 of 1994 within a time to be fixed by the Court.
The Court had disposed of the writ petition with the direction to the BIFR, as the aforesaid order of the AAIFR dated 26.8.2009 directing for sale of surplus assets of the respondent No.2 and for finalising the draft rehabilitation scheme had attained finality, to ensure its immediate compliance, if there is no legal impediment and to pass appropriate order in accordance with law within a period of two months.
The Court by the aforesaid order has not adjudicated any rights of the parties and has not made any observation with regard to their rights or even with regard to the merits of any order of the AAIFR or BIFR. It is not disputed by the parties that the order of the AAIFR dated 26.8.2009 as on the date is final and conclusive. The relevant operative part of the said order is as follows:
"..............The BIFR may arrange the sale of the surplus property of the company within a period of four months and simultaneously during this period of four months finalise the DRS. As mentioned earlier, the sale proceeds will be utilized as per the provisions of the sanctioned scheme.
Thus considering the totality of the facts and circumstances of the case, we partly allow this appeal with a direction that the BIFR will appoint the IDBI as the Operating Agency in place of PNB and allow the sale of the surplus assets of the company situate at four places in Bihar and utilize the same as per the provisions of the sanctioned scheme for rehabilitation of the appellant company. With the aforesaid directions, this appeal as well as M.A. No.221/09 is finally disposed of accordingly. Parties to appear before the BIFR on 15.9.09 for further hearing."
The substance of the above order is that the AAIFR permitted the BIFR to arrange for the sale of surplus property of respondent No.2 situate at four places in Bihar within a period of four months and to utilize the sale proceeds thereof as per the provisions of the sanctioned scheme for rehabilitation.
Thus, the direction for sale of the aforesaid properties was separate from that of formulation of the rehabilitation scheme and utilisation of sale proceeds according to the rehabilitation scheme.
There may not be any dispute that though initially the applicant was not a party to the proceedings before the BIFR/AAIFR at the time when the AAIFR had passed the order dated 26.8.2009 which is sought to be implemented though this writ petition. But subsequently, vide order dated 18.3.2010 he was ordered to be impleaded in proceedings before the AAIFR permitting him to participate in the future proceedings. The direction to implead him subsequently in no way vitiates or affects the order of the AAIFR dated 26.8.2009 which remained intact.
The order of the BIFR dated 4.10.2011 no doubt is an order which has been passed on an application of the petitioner to comply with the order dated 26.8.2009. The said order is one step towards the implementation of the order of the AAIFR dated 26.8.2009 but it is not a final order and despite it the BIFR is obliged to proceed and finalise the proceedings as directed by AAIFR.
In view of the above, even if the BIFR had proceeded and had taken some step for implementation of the order of the AAIFR dated 26.8.2009 the directions issued by this Court to ensure compliance of the said order and to implement it would not militate with the order dated 4.10.2011. The direction of this Court can be followed irrespective of the aforesaid order dated 4.10.2011 inasmuch as the anxiety of the Court is only to ensure compliance of the order of the AAIFR. In this situation, the applicant is not affected in any manner by the order of this Court dated 17.5.2012.
As far as the order of the BIFR passed on 20.7.2012 pursuant to the order of this Court to ensure compliance of the order of the AAIFR, the said order is an independent order and again a step towards the implementation of the order of the AAIFR. In case the said order adversely affects the rights of the applicant he is free to challenge it independently. However, merely for the reason that pursuant to the direction of this Court the BIFR is now proceeding expeditiously to bring to an end the proceedings before it which were initiated way back in 1994, the applicant cannot have any grievance, more particularly when he has knowledge of the proceedings and is appearing therein.
The Court is informed that the applicant has already filed an appeal No.164 of 2012 against the above order dated 20.7.2012 before the AAIFR.
The order sought to be recalled is undoubtedly an ex-parte order but it does not decides any substantive rights of the parties and at the same time causes no prejudice to the applicant as it directs only for compliance of the order of the AAIFR dated 26.8.2009 which otherwise also is liable to be complied with and implemented. Such orders are routine orders as directions to complete any proceedings pending within a stipulated time ordinarily do not cause any prejudice to the absentee party. I am therefore, of the opinion that no case for recall of the order dated 17.5.2011 is made out.
There is another aspect which is important in considering the recall of the order dated 17.5.2012. The said order was passed by the Court at the threshold when the petition was filed, without considering the necessity of calling upon the other side as the Court was not adjudicating any substantive right of the parties. In this situation, even if the applicant would have been arrayed as one of the respondents he would not have got any opportunity of being heard unless he had entered into a caveat. It is not the case of the applicant that he was watching the proceedings or had filed a caveat so that he may be heard. In these circumstances the order disposing of the petition was passed in a routine manner unmindful of the claim of the parties on merit for the simple reason that the order of the AAIFR which has become final has to be followed for which fixation of time limit was necessary as there was considerable delay in its compliance.
It is settled law that it is not mere technicality or infringement of legal right but something more resulting in miscarriage of justice which puts the Court into motion to undo the injustice by recalling its earlier order. In my opinion no such case has been made out.
The applications as such are misconceived and are rejected.
The BIFR may proceed independently, in accordance with law so as to ensure the compliance and implementation of the order of the AAIFR in its true spirit so that justice may be done to the parties.
Order Date :- 18.10.2012 brizesh