JUDGMENT 1. This writ application has been filed by New Era Fabrics Limited Shri Ram Jute Products Limited Narmada Laminators Pvt. Ltd. and Anand Kumar Agarwalla, petitioner nos. 1 to 4 herein respectively, inter alia, praying for an order that section 20 of the Sick Industrial Companies (Special Provisions) Act, 1985 be declared ultra vires the Constitution of India and null and void and also for other relief's. 2. The petitioner no.1 is a public limited company having an authorised capital of Rs. 2 crores. The petitioner no.2 is also a public company limited by shares having an authorised capital of Rs. 95 lakhs and providing employment of 300 workers directly. The petitioner no.2 carries on were housing business and the said warehouse is situate at 43/1, Garden Reach Road, Calcutta and the annual income from the said warehousing business for the year ended on 31.3.1992 was 79 lakhs. 3. It is the petitioners case that, he Dunbar Mills limited the respondent no.11, has a composite textile mill located a Shamnagar, District 24-Pargans (North), having a licensed capacity for 68084 spindles and 978 looms and the present installed capacity is 66800 spindles and 978 looms with processing capacity of 60,000 meters of cloth per day and has captive diesel generator sets to cater to the electricity/power needs of the company of production. The said company was initially promoted in the year 1896 by M/s. Kilburn & Co. for setting up a spinning mill which was eventually converted into composite textile mill. The controlling interest in the company was taken over by the Bangurs a family of industrialists, in or about 1954 and later the manufacturing unit of the company was leased out to M/s. Maharaja Shree Umaid Mills Ltd. the respondent no. 12 herein, initially for a period of two years. Subsequently M/s. Maharaja Shree Umaid Mills Ltd. acquired the majority shareholding of the company and thus become a holding company thereof. In 1983 the financial institutions sanctioned terms loans aggregating Rs. 260 lakhs for modernization of the said manufacturing unit of the company at a total cost of Rs. 410 lakhs, the break-up of which is as follow:- IFCI Rs. 90 lakhs IDBI Rs. 110 lakhs IRBI Rs. 60 lakhs Modernization of the manufacturing unit of the company was subsequently abandoned after incurring an expenditure of about Rs. 260 lakhs for modernization of the said manufacturing unit of the company at a total cost of Rs. 410 lakhs, the break-up of which is as follow:- IFCI Rs. 90 lakhs IDBI Rs. 110 lakhs IRBI Rs. 60 lakhs Modernization of the manufacturing unit of the company was subsequently abandoned after incurring an expenditure of about Rs. 395 lakhs out of which the financial institutions disbursed term loans to the extent of Rs. 253.75 lakhs. Ultimately the said company was closed down with effect from 30.5.1987. The company incurred a cash loss of Rs. 108 lakhs in 1986 and about Rs. 345 lakhs in 1987. On 31.12.1987 the accumulated losses of the company amounted to Rs. 587 lakhs. In 1987 the company made a reference to the Board for Industrial and Financial Reconstruction under the provisions of section 15(1) of the Sick Industrial Companies (Special Provision) Act, 1985. On 10.3.1988 the BIFR declared the company as a sick company under clause (c) of the sub-section (1) of section 3 of the said Act and IFCI, the respondent no.2 was appointed as the Operating Agency for the purpose of formulating a viability scheme under section 17(3) of the Act for rehabilitation and revival of the company. BIFR also appointed Mr. M.L. Guliani as a Special Director of the company under section 16(4) of the said Act. On 14.11.1988 the BIFR formed a prima facie opinion that the company should be wound up. On 27.2.1989, the representative of the Government of West Bengal requested the BIFR for granting three months time so as to enable the State Government to consider the revival of the company. Mr. K.N. Fatehpuria of Martin Burn Ltd. submitted a rehabilitation scheme for the revival of the company. Subsequently Mr. K.N. Fatehpuria backed out and informed the BIFR that he was no longer interested in taking over the company. On 12.8.1991 one Shri Kant Banger, a member of the Banger family, submitted before the BIFR that his group would be in a position to mobilize the required interest free fund for reviving the company. On 11.5.1992 the scheme submitted by Shri Kant Banger was found to be unworkable mainly on the issue of employment of existing workers and waiver of penalties interest by statutory authorities, such as ESI, EPF and CESC etc. On 11.5.1992 the scheme submitted by Shri Kant Banger was found to be unworkable mainly on the issue of employment of existing workers and waiver of penalties interest by statutory authorities, such as ESI, EPF and CESC etc. The representatives of the various Workers Unions of the company submitted before the BIFR that time be given to the Workers Unions to from a workers co-operative for operating the company and submit a comprehensive proposal in respect thereof. It was further submitted that some financiers might be agreeable to invest substantial amounts for the revival of the company. By an order dated 24.6.1992 the BIFR under section 20(1) of the said Act held that company was not viable and should be wound up and the order was forwarded to the Hon'ble High Court, Calcutta for further necessary action in accordance with law. The petitioner case is that they want revival of the company and they are vitally interested as the petitioner nos.2 and 3 are shareholders of the company. The petitioners have entered into an agreement and/or settlement with the workers unions for the purpose of rehabilitation and revival of the company and have annexed a copy of the agreement dated 6.12.1992 to the writ petition. The case of the petitioners is that by virtue of the said agreement the entire outstanding dues of the workers including wages, gratuity, bonus, leave wages etc. would be paid in accordance with the said agreement and the workers have accepted the mode of payment. The petitioners have filed a scheme for revival of Dunbar Mills Ltd. Copy of the scheme was given to all the parties and the parties failed their affidavits. 4. Mr. P.K. Mallick appearing with Mr. P.K. Roy prays that the scheme may be accepted and the petitioners may be allowed to revive the company as per the said scheme. Mr. P.K. Mallick on behalf of the petitioners gives an undertaking that the petitioners will not use the land, building, structures and machinery for any other purpose other than the running of the mill and will pay a sum of Rs. 39 lakhs to the workers and more than 95% of the workers have agreed with the petitioners that they will help and assist the petitioners and will revive the company. 5. It is further submitted by Mr. 39 lakhs to the workers and more than 95% of the workers have agreed with the petitioners that they will help and assist the petitioners and will revive the company. 5. It is further submitted by Mr. M.K. Mallick that the financial institutions at one point of time agreed to consider waiving interest and it is a fit case where the financial institutions should be directed to accept the particular amount in terms of he scheme and the amount which will be payable to the financial institutions may be paid by installments. 6. Mr. Somnath Chatterjee appearing with Mr. Shibdas Banerjee and Mr. Ashok Banerjee, representing 95% of the workers, submits that the workers have agreed with the petitioners and they will render their services for the revival of the company and an opportunity should be given as more than 3000 workers were working and some of the workers have already committed suicide and most of the families are practically starving and unless the company is revived, the workers will suffer immense hardship. 7. Mr. P.C. Sen appearing for the respondent no.5 State Bank of Bikaner & Jaipur, along with Mr. Debal Banerjee strongly opposes the proposal in the scheme and it is submitted by Mr. Sen that the State Bank of Bikaner & Jaipur has already filed a suit for recovery of Rs. 6 crores being suit no. 851 of 1989 and since a suit is pending this Court in its writ jurisdiction cannot compel the Bank to accept an amount which is less than the amount claimed in the suit and/or waive the interest. It is submitted by Mr. Sent that no full disclosure has been made about the financial position of the writ petitioners. It is submitted by Mr. Sen that a best this Court can refer the scheme to BIFR for consideration and the proper authority is BIFR who can consider the pros and cons of the scheme and the feasibility of the scheme. It is submitted by Mr. Sen that the writ petitioners never appeared before the BIFR at any stage since 1987. Against the order of the BIFR which has been sought to be set aside in the writ petition it is submitted by Mr. It is submitted by Mr. Sen that the writ petitioners never appeared before the BIFR at any stage since 1987. Against the order of the BIFR which has been sought to be set aside in the writ petition it is submitted by Mr. Sen that alternative remedy is there to prefer an appeal under Section 25 as under that Section, any person aggrieved by the order is entitled to prefer an appeal against the finding of the BIFR. It is submitted by Mr. Sen that the Court cannot consider the scheme as all materials are not before the Court nor it is possible for this Court in its writ jurisdiction to consider the pros and cons of the scheme. In any view of the matter the petitioners have no locus standi to file the writ petition and/or the scheme. 8. Mr. Sen referred to a decision reported in Navnit Kamani & other vs. R.R. Kamani, 1988(4) SCC 387 , where in it has been held:- "The statement of objects and reasons reveals the purpose underlying the benevolent legislation as also the anxiety of the legislature to provide for preventive, ameliorative and remedial measures essential for reviving sick or potentially sick companies and for ensuring expeditious enforcement of the measures devised by the competent authority under the Act. The statement of objects and reasons discloses the anxiety of the legislature at the alarming increase in the incidence of sickness of industrial companies and it also reveals that the legislation has been enacted with the end in view to:- 1. Afford maximum protection of employment. 2. Optimise the use of funds of the companies etc. 3. Salvaging the production assets. 4. Realizing the amounts due to the banks etc. 5. To replace the existing time consuming and inadequate machinery by efficient machinery for expeditious determinations by a body of experts." 9. It is submitted by Mr. Sen that the Bank is entitled to a clam of Rs. 6 crores plus interest thereon and in the scheme the petitioner wants that the interest should be waived and the bank should accept a sum below Rs. 2 crores as a full and final settlement of Banks claim. It is submitted by Mr. Sen that the Bank is entitled to a clam of Rs. 6 crores plus interest thereon and in the scheme the petitioner wants that the interest should be waived and the bank should accept a sum below Rs. 2 crores as a full and final settlement of Banks claim. It is submitted that the Court cannot compel the financial institutions including the Bank to accept the scheme and to forego their claims specially in view of the fact that a suit for recovery of the said amount is now pending. Mr. Sen referred to the case reported in Industrial Reconstruction Bank of India vs. Textile Processing Corporation, 1990(1) CLT 152, wherein it has been observed:- It is quite clear from section 20(2) of the said Act that a distinction is being made in the section regarding the proceedings to be taken before a winding up order and after a winding up order. In our opinion, sub-section (2) of section 20 makes it quite clear that the High Court has got no option but to pass an order of winding up on the basis of the opinion of the Board. But after such order is passed, the proceedings in the winding up order in respect of a particular sick industrial company shall be in accordance with the provisions of the Companies Act, 1956. The winding up proceeding consist generally of two parts, one is before the winding up order is passed and another is after the winding up order is passed. In our opinion, by section 20(2) if there is any opinion of the Board within the meaning of the said Act, than the Court has no option but to pass an order of winding up without following any further procedure laid down in respect of the companies in general. To put it shortly, in that case there is no question of any advertisement to be published. However, after such winding up order is passed, the procedure laid down in respect of winding up proceedings in the Companies Act have full application and will have full effect. To put it shortly, in that case there is no question of any advertisement to be published. However, after such winding up order is passed, the procedure laid down in respect of winding up proceedings in the Companies Act have full application and will have full effect. In our opinion, a distinction is made so far as the proceedings before and after the Act are concerned by virtue of sub-section (2) the proceeding before the order have been dispensed with in the case of the opinion of the Board within the meaning of Section 20 of said Act. 10. So far as the right of the Workers to make a representation is concerned, we are of the opinion that no such right can be claimed in a case coming within the scope of section 20(2) of the Act. The opportunity to be given to the workmen before a winding up order is passed is laid down by the Supreme Court in the case of National Textile Workers Union vs. P.R. Ramkrishnan, AIR 1983 SC 75 . The Supreme Court has laid down the law of land. However, it is open to the Parliament to amend any existing law which would include any law laid down by the Supreme Court. This position has been made clear by section 32 of the 1985 itself. In any event we may point out that the workmen were represented before the Board and it is only after hearing the workmen and after giving a further opportunity to the workmen, the final order has been passed by the Board. Therefore, even if there is any question of giving and opportunity to the workmen, that opportunity has been given and has been fully availed of. 11. Mr. Sen further referred to a decision reported in Bengal Lamps Limited vs. Furmanite Nicco Limited, 1990(2) CL LJ 339 and submitted that from the statements of objects and reasons of the Act it is clear that one of the objects of the Act is to salvage the productive assets and realize the amount due to the Banks and other financial institutions to the extent possible from the non-viable Industrial Companies through liquidation of there companies. 12. It is submitted by Mr. 12. It is submitted by Mr. P.C. Sen that the banks is entitled to the principal and also interest claimed in the suit and the interest for the period prior to the institution of the suit is governed by the agreement between the parties and so far as the claim of the bank for interest at agreed rate is concerned, the Court has no discretion to ignore. In the instant case the scheme cannot be sanctioned by this Court as the petitioner wants that this Court should accept the scheme and thereby deprive the bank of the principal and also interest. Mr. Sen refers to a decision to the case of Vijaya Bank & etc. vs. Trend Exports & etc. AIR 1992 Cal 12 , wherein it has been held:- Banking Regulation Act (1949), S. 21A. 13. If there is any agreement to pay interest in respect of the period prior to the institution of suit, such interest is to be governed by such agreement. Where there is no such agreement, it is to be paid according to the statutory provision governing the same, if any. Both the interest Act of 1839 and 1978 provide for the award of interest in cases referred to therein up to the date of the institution of the proceeding. Interest Act, 1978 applies in respect of proceeding commenced after the said Act came into force, whereas Interest Act, 1839 applies for the period prior thereto. Apart from that, interest is also payable under various other Acts e.g. Negotiable Instrument Act, Sale of Goods Act etc. The Court has also power to grant interest on the basis of implied agreement or on equitable grounds. If there is any agreed rate of interest, that is a part of the claim of the plaintiff. The plaintiff is entitled to the same under the substantive law. The question of exercise of any discretion by the Court cannot and does not arise in such a case. The Court has no power to deviate from the agreement by totally disallowing interest or allowing interest at a lower rate or at rate other than the agreed rate. 14. The plaintiff is entitled to the same under the substantive law. The question of exercise of any discretion by the Court cannot and does not arise in such a case. The Court has no power to deviate from the agreement by totally disallowing interest or allowing interest at a lower rate or at rate other than the agreed rate. 14. So far as Banking Companies are concerned, in view of S.21-A of Banking Regulation Act, 1949, a transaction between a Banking Company and its debtor cannot be reopened by any Court on the ground that the rate of interest charged by the company in respect of such transaction is excessive. Therefore, it follows that in the case of a Banking Company a fortiori, its claim to interest at the agreed rate for the period prior to the suit cannot be ignored and the Court is bound to grant interest at the rate. The Court has no discretion in the matter. 15. Mr. P.C. Sen, the learned Advocate appearing for State Bank of Bikaner & Jaipur further submitted that the petition is not maintainable as the petitioner has no legal right to maintain the action. Mr. Sen referred to a decision in the case of State of Kerala vs. A. Lakshmikutty, AIR 1987 SC 331 , wherein it has been held:- "32. The Governor has to act on the advice of the council of Ministers under Article 163(1) in the matter of appointment of District Judges under Article 233(1) and not on the advice of the High Court. Shamsher Singh vs. State of Punjab, AIR 1974 SC 2192 . Appointment of persons to be, and posting and promotion of District Judges by the Governor under Article 233(1) is purely an executive function. The High Court therefore had no authority or jurisdiction to issue any writ of mandamus of the kind complained of. It was certainly not open to the High Court, if we may say so without meaning any disrespect, to embark upon an inquiry as to the reasons which impelled the Counsel of Ministers at the meeting held on 28.2.1985 to review the decision taken on 30.1.1985 and decide not to appoint anyone as a District Judge under Article 233(1) from the panel of names drawn up by the High Court. It was also not justified in observing that the reasons as disclosed by the Chief Minister in his letter dated 4.3.1985, on the basis of which the Council of Ministers on 28.2.1985 decided not to appoint respondents 1 and 6 as District Judges on the recommendation of the High Court, viz. due toe non-representation of certain important communities or groups of communities were no reasons at all and in any event, the reasons given were bad in law. There is no basis, in our opinion, for the finding reached by the High Court. Learned Counsel for the State Government rightly questioned the authority and jurisdiction of the High Court to have issued a writ of mandamus commanding the State Government to make certain appointment of persons to be District Judges when the Council of Ministers had taken a decision to the contrary. According to him, this was not a proper exercise of powers by the High Court under Article 226 of the constitution and in any view of the matter, the issuance of a writ of mandamus in the circumstance was wholly impermissible. In our opinion, the contention must prevail. "33. We must refer to the case of Mani Subrat Jain vs. State of Haryana, AIR 1977 SC 276 , which was relied upon by learned Counsel for the State Government. It is well settled that a writ of mandamus is not a writ of course or a writ of right, but is, as a rule, discretionary. There must be judicially enforceable right for the enforcement of which a mandamus will lie. The legal right to enforce the performance of a duty must be in the applicant himself. In general, therefore, the Court will only enforce the performance of statutory duties by public bodies on application of a person who can show that he has himself a legal right to insist on such performance. Applying the principles stated in Halsbury's Law of England, 4 the Edition, volume 1, para 122, this court observed that a person whose name had been recommended for appointment as a District Judge by the High Court under Article 233(1) had no legal right to the post, nor was the Governor bound to act on the advice of the High Court and therefore he could not ask for a mandamus. It was observed:- "It is elementary though it is to be restated that no one can ask for a mandamus without a legal right. The initial appointment of District Judges under Article 233 is within the exclusive jurisdiction of the Government after consultation with the High Court. The Governor is not bound to act on the advice of the High Court. The High Court recommends the names of persons for appointment. If the names are recommended by the High Court it is not obligatory on the Governor to accept the recommendation. The consultation of the Governor with High Court does not mean that the Governor must accept whatever advice of recommendation is given by the High Court. Article 233 requires that the Governor should obtain from the High Court its views on the merits and demerits of persons selected for promotion and direct recruitment. The existence of a right is the foundation of the jurisdiction of a Court to issue a writ of mandamus. The present trend of judicial opinion appears to be that in the case of non-selection to a post, no writ of mandamus lies. We however do not wish to rest the decision on the technical ground." 16. Mr. P.C. Sen also relied upon a decision reported in Mani Subrat Jain vs. State of Haryana, AIR 1977 SC 276 , and submitted that no one can ask for a mandamus without a legal right. There must be a judicial enforceable right as a legally protected right before one suffering a legal grievance can ask for a mandamus. In the said decision it has been held that a person can be said to be aggrieved only when a person is denied a legal right by some one who has a legal duty to do something or abstain from doing something. It is submitted by Mr. Sen that in the instant case the writ petitioners have no legal right whatsoever. 17. Mr. Sen further submits that if the petitioner is so much interested, let the petitioner purchase the mill or the company as a going concern and let there be advertisement in the newspapers and the mill be sold to the highest offer. To show the bona fide, let the petitioner came with a reasonable offer and the said procedure can be adopted only after valuation of the assets and liabilities by appointing an Auditor. 18. Mr. To show the bona fide, let the petitioner came with a reasonable offer and the said procedure can be adopted only after valuation of the assets and liabilities by appointing an Auditor. 18. Mr. Dhandhania appearing for the three financial institutions, namely, IFCI, IDBI and IRBI submitted that a sum of Rs. 6.5 crores is now due by Dunbar Mills to the said financial institutions and the monthly interest is about Rs. 9 lakhs. The paid up capital of the petitioner is Rs. 172 lakhs and the current asset of respondent no.11 is Rs. 278 lakhs. Mr. Dhandhania refers to a scheme given by Mr. Shri Kant Banger which was considered by BIFR and submits that the present scheme is practically a reproduction of some paras of the said scheme. The present scheme is similar if not same and the said scheme being rejected by BIFR, the present scheme is not maintainable in law. It is submitted by Mr. Dhandhania that the petitioner wants to pay off the financial institutions about less than 1/3rd of their legitimate claims and that amount also is sought to be paid by installments of 15 years. It is submitted that the scheme is also not beneficial to the workers as only 1101 workers are going to be provided employment. On the other hand, in the previous scheme more than 2000 workers were to be absorbed. So the scheme is be rejected. However, Mr. Dhandhania submits that if the scheme is referred to BIFR his clients will place the facts to the BIFR for consideration. 19. Mr. Dhandhania, the learned advocate appearing for the financial institutions further submitted that the total area of the land is 57.93 acres and the said land was valued at Rs. 5.25 crores in 1985 and the building situated on the land was valued at Rs. 3.68 crores. Plant and machinery was valued at Rs. 11.97 crores and the current asset of the company was valued at Rs. 3.39 crores. It is submitted by Mr. Dhandhania that the valuation as made in 1985 was more than Rs. 22 crores. Now until the valuation is made afresh and the current valuation is ascertained and the liabilities are ascertained, this court should not accept the scheme as the scheme cannot be examined in proper perspective without ascertaining the liabilities and the valuation of the assets as on today. 20. 22 crores. Now until the valuation is made afresh and the current valuation is ascertained and the liabilities are ascertained, this court should not accept the scheme as the scheme cannot be examined in proper perspective without ascertaining the liabilities and the valuation of the assets as on today. 20. The learned advocate appearing for the respondent no.10 Employees State Insurance Corporation opposes the scheme and submits that it will be highly prejudicial for his client as the payment would be deferred by 15 years and his client have already started certificate proceedings and also criminal proceeding and have legal right to file certificate proceedings and criminal proceedings which cannot be stayed and/or taken under the scheme. 21. The learned advocate appearing for the Calcutta Electric Supply Corporation, the respondent no.13 refers to page 14 of the scheme and submits that the petitioner wants Calcutta Electric Supply Corporation to accept its dues by ten annual installments and more than Rs. 25 lakhs is outstanding and the petitioner is not prepared to pay the security deposit as required to be paid under the Rules of the Calcutta Electric Supply Corporation and as such the scheme should be rejected. On behalf of the company i.e. respondent no.11, the learned Counsel Mr. Asim Banerjee has appeared and urged that at early stage of the matter the management of the company had itself given the scheme for rehabilitation of the company but the same was not approved by BIFR. He, however, argued that the allegations contained in the present petition as to value of the assets having gone down are imaginary and truly the same is even more than the book value of the assets. He, however, stated that the scheme given by the petitioners does not appear to be viable and feasible and in any case the assets should not be allowed to be fettered away. The control of the assets etc. and affairs of the company should not be assigned to the petitioners because they have not framed any proper scheme and have no capacity or intentions to run the company. He argued that the company is not opposed to reconsideration of the matter of its rehabilitation by BIFR which is the proper forum, but it is not at all proper that the assets are allowed to deteriorate in value. 22. Dr. He argued that the company is not opposed to reconsideration of the matter of its rehabilitation by BIFR which is the proper forum, but it is not at all proper that the assets are allowed to deteriorate in value. 22. Dr. T.K. Banerjee appearing on behalf of respondent no.12 submitted that while his client is not opposed to consideration or reconsideration of any schemes for rehabilitation of the company respondent no.11 his client finds that present scheme and the so called labour agreement on which the petition is based are incomplete, totally infirm, full of contingencies and unviable. He argued that he opposes the scheme which is unworkable and unacceptable. Dr. Banerjee stated that his client has already in past made its earnest efforts for rehabilitation of the company being respondent no.11 by making very substantial outlay/remissions to the tune of Rs.6.97 crores from time to time as stated and in return has got absolutely nothing any time. He stated that any formal status apart, his client or Mr. L.N. Banger have not been in defacto management of the company being respondent no.11. His client has already made further substantial sacrifices by writing off its various dues against respondent no.11 and under circumstance has arrived at even a settlement with the Bank whereby Rs. 190 lakhs have been further agreed to be paid which is being paid on time. He asserted that the plant & machinery of substantial present value of about Rs. 2 crores which are admittedly the sole property of his client and lying at mills of respondent no.11 are absolutely free from and encumbrance or any lien, which fact is also admitted by Mr. Ashim Banerjee appearing for respondent no.11 and should be returned in any case as his client is not at all agreeable to transfer the came in the hands of the petitioners or any party as suggested in the scheme. Further, Dr. Banerjee laid stress that basically the alleged guaranty agreement are void ab initio and alternatively stand discharged. In any event the question of his clients standing guarantor does not arise and is totally unacceptable as urged by the petitioners. He stressed that none of the propositions made in the scheme of the petitioners are at all acceptable to his client. 23. Mr. In any event the question of his clients standing guarantor does not arise and is totally unacceptable as urged by the petitioners. He stressed that none of the propositions made in the scheme of the petitioners are at all acceptable to his client. 23. Mr. Prodosh Mullick, the learned Advocate submits that his client will agree if the Scheme is modified keeping the interest of the company and also the workers. It is submitted by Mr. Mullick that his client is agreeable to accept that no asset should be sold and no machinery would be sold without replacing and the petitioner will put in Rs. 110 lakhs in the first year and Rs. 140 lakhs in the second years and if for any reason the petitioner is unable to run the factory the petitioner will have no claim whatsoever on the assets of the respondent no.11 nor will claim refund of the said sum of Rs. 110 lakhs and Rs. 140 lakhs. 24. Mr. Somnath Chatterjee submission behalf of the workers that his client are representing 95% of the workers of the Mill and the Court should not look into the technicalities and this is high time that the Court should look into the matter With human approach. The financial Institutions advanced the money for the purpose of welfare of the workers by keeping the industry running. The paramount consideration for the Court should be to see that the workers service and they are allowed to work and earn their livelihood. As a matter of fact the workers are ready and willing to work for the purpose of revival of the Company. No allegation has been made by the Company at any point of time that the workers were guilty and because of the fault or laches of the workers the Company suffered losses or was closed. But this is a case where the workers were never at fault but are victims of circumstances and they should be rescued from their miseries by allowing the revival of the company by the Scheme. It is submitted by Mr. Chatterjee that the jurisdiction of the Court is far wide than BIFR since BIFR bas rejected a scheme and that should not stand in the way of revival by a fresh scheme. It is submitted by Mr. Chatterjee that the jurisdiction of the Court is far wide than BIFR since BIFR bas rejected a scheme and that should not stand in the way of revival by a fresh scheme. The paramount authority is with the Court and to administer justice and to do equity to the workers it is the duty of the Court to accept the Scheme. 25. Mr. Chatterjee referred to the decision reported in Navnit Kamani & other vs. R.R. Kamani, 1988(4) SCC 387 , wherein it has been held:- "14. An apprehension has been expressed that some attempts might be made by those who are not happy with the sanctioning of the Workers' Scheme to throw a spanner in the wheel and to impede the implementation of the scheme. We do not think any such effort would be made having regard to the fact that the scheme has been devised as per the directions of this Court and that it has now been stamped with the imprimature of this Court pursuant to this order. It is of course true that if the legal forum is utilised with an eye on impeding the implementation of the scheme, it could throw everything out of gear. This cannot be countenanced as implementation of the scheme with expedition is of the essence of the present exercise. The Act itself has been enacted in order to evolve a speedy and efficient machinery so that a sick industry could be revived with utmost expedition, production could be started, locked up funds could be utilised for furthering socio-economic development. And so that the unemployment of starving workers could be ended before they are starved to death and they are provided with employment to enable them to live with dignity instead of existing in humiliating conditions. We, therefore, make it clear that notwithstanding any order that may be secured by any party from any other forum the scheme shall be implemented in obeisance to the judicial command embodied in this order and that in case there is any problem, it may be brought to this Court for seeking appropriate directions instead of resorting to other forums to impede the implementation of this socially and economically wholesome Scheme." 26. It is submitted by Mr. Chatterjee that on the prayer of Mr. Chatterjee, Mr. P.C. Sen's advocate on Record and Mr. It is submitted by Mr. Chatterjee that on the prayer of Mr. Chatterjee, Mr. P.C. Sen's advocate on Record and Mr. Dhandbania's Advocate on Record were directed to produce the accounts showing what amount was originally lend and the interest calculated on the said amount and the basis of the claim of the bank, i.e. State Bank of Bikaner & Jaipur and other financial institutions, but the said respondents failed to comply with the order of the Court. However, some accounts have been filed, which shows that for several years there was no transaction excepting carrying forward of the interest. So, the main claim of the bank and the financial institutions are on account of interest and the bank and the other financial institutions took no steps from 1981 and at least from 1987 since when the factories were lying closed for recovery of their money. Now that the workers with great difficulty have obtained a party who sincerely want to work and is ready to give all sorts of securities to the workers and also to the creditors by giving an undertaking that they will not remove and/or sell the immovable properties, machinery and all other movable and immovable properties, the financial institutions are standing in the way for revival of the company. 27. It is submitted by Mr. Chatterjee that the workers were a party before the BIFR and since Mr. Sen has argued that the petitioners have no locus standi, according to Mr. Chatterjee, the workers are ready and willing to be transposed as a petitioner and may be considered to be a party to the scheme along with the petitioners and the scheme may be considered to be a joint venture of the petitioners and the workers. 28. Heard the learned Advocate appearing for the respondent nos. 20 and 26. It is submitted by the learned Advocate that the copy of the scheme has not been served upon the advocate on record of the respondent nos. 20 and 26 and as such the scheme should be rejected. At this stage Mr. Ashok Banerjee, learned Advocate appearing with Mr. Somnath Chatterjee for 95% of the workers of Dunbar Mills, submits that since the respondent nos. 20 and 26 are signatories to the agreement between the workers and the petitioner, the learned Advocate who is appearing for the defendant nos. At this stage Mr. Ashok Banerjee, learned Advocate appearing with Mr. Somnath Chatterjee for 95% of the workers of Dunbar Mills, submits that since the respondent nos. 20 and 26 are signatories to the agreement between the workers and the petitioner, the learned Advocate who is appearing for the defendant nos. 20 and 26 has no authority to appear and he is not representing respondent nos. 20 and 26 It is further submitted by Mr. Ashok Banerjee that the scheme has been supported by the defendant nos. 20 and 26 and as a matter of fact 95% of the workers including the respondent nos. 20 and 26 are signatories to the agreement. However, the learned Advocate appearing for the respondent nos. 20 and 26 submits that the scheme submitted by Panorama Electronics i.e. third party intervener may be accepted as his clients have agreed with Panorama Electronics for resuming the factory. 29. Heard also Mr. Bimal Chatterjee, learned Advocate for Panorama Electronics and three others, namely, Mr. Balaram Chowdhury, Mr. P. Toshniwal and Mr. S. Toshniwal and it is submitted by Mr. Bimal Chatterjee that an order be passed in terms of prayer b(1) of the writ petition. that is, cancellation of the orders passed by the BIFR dated 14.11 1988 and 24.6.1992 It is further submitted that if the order of the BIFR is set aside and the scheme filed by the petitioner be sent to the BIFR, then the scheme filed by Mr. Bimal Chatterjee's client should also be considered by BIFR. 30. Mr. Pratap Chatterjee, learned Advocate appearing with Mr. Somnath Chatterjee for 95% of the employees submits that the petition of Mr. Bimal Chatterjee's client should be rejected. It is submitted that from the memorandum of settlement it appears that the union of Munnilal Gupta, Unions of Dunbar Mills, Joydeb Mohanti, INTUC and Dunbar Mills Mazdoor Congress, that is parties nos. 6, 7 and 8 of the memorandum of settlement only came into existence in February 1993, that is, after the filing of the writ petition by the writ petitioners and the said parties, that is, Unions represented by Munnilal Gupta, Joydeb Mohanti and Mazdoor Congress came into existence only for the purpose of filing the present application through Mr. Bimal Chatterjee's clients and the said memorandum of settlement was prepared for the purpose of giving a scheme before this Court through Mr. Bimal Chatterjee's clients and the said memorandum of settlement was prepared for the purpose of giving a scheme before this Court through Mr. Bimal Chatterjee's clients and the said parties have no other activity excepting to file the present application. It is submitted by Mr. Pratap Chatterjee that at para 22 where the parties have put their signatures there are no dates and it is blank. In the memorandum of settlement nowhere there is any date which fact shows that the said agreement was brought into existence at quick haste and is not a genuine document but fabricated for the purpose of giving the scheme before this Court through Mr. Bimal Chatterjee's clients. It is further submitted by Mr. Pratap Chatterjee that the scheme should not be sent to the BIFR as more than 6 years have passed and the workers are starving and if the matter goes to BIFR, the matter will be delayed for few years and no fruitful purpose will be served. 31. Mr. Ashok Banerjee appearing for the 95% of the workers also submitted that 26 workers have already committed suicide and 150 persons being the members of the family of the workers have died on starvation. 32. Mr. Samar Rudra, learned Advocate for the State of West Bengal, submitted that the Government of West Bengal supports the scheme for rehabilitation of Dunbar Mills Ltd. and as such a chance should be given to the petitioners to start working of the Mill so that the workers may have their livelihood. 33. Mr. Jayanta Mitra, learned Advocate appearing for the petitioner, submitted that this is a fit case where the petitioner is entitled to pray for an order of amendments as the petitioner no.1 along with other own 301 shares of the Dunbar Mills and, as such, the petitioners have got the legal right to see that the valuation of the shares and/or the price of the shares are not diminished and the company resumes its business and as a shareholder the petitioners have got a right to file and maintain the present application. It is further submitted that the workers have a substantive right and they are vitally interested persons so far as the running of the mill is concerned. Mr. It is further submitted that the workers have a substantive right and they are vitally interested persons so far as the running of the mill is concerned. Mr. Somnath Chatterjee, learned Advocate has already submitted that the workers may be substituted from the place of the respondent to the petitioner and the application may be treated as an application /not only by the petitioners but also by the workers. In any view of the matter, it is submitted by Mr. Mitra that the Court should entertain the application and will approve the scheme subject to such modification as the Court may deem fit and proper. 34. It is further submitted by Mr. Jayanta Mitra that the main opposition against the writ petitioner has been preferred by and/or on behalf of the State Bank of Bikaner & Jaipur and the three financial Institutions, who are represented by Mr. Sen and Mr. Dhandhania, stating that the scheme was rejected by BIFR on 24.6.1992 and the present writ application was filed on 28.12.1992. No steps were taken by the State Bank of Bikaner & Jaipur or the said three financial institutions during the period, i.e. from 24.6.1992 to 28.12.1992 and when the present petition has been filed they are coming to resist the scheme as the sole object of the Bank is not to help the industry but to act as shylock whose object is only to earn interest and nothing else. From the order of the BIFR it is submitted by Mr. Mitra, that BIFR is waiting for a new promoter. When K.N. Fatehpuria of Martin Burn Ltd. gave a proposal, the said bank and the financial institutions took the stand that the proposal of unusual reliefs and concessions made in the scheme were not acceptable to the said bank and the financial institutions. As such, it is submitted that because of the stiff opposition of the financial institutions and the bank M/s. Martin Burn Ltd. submitted before the BIFR that they are no longer interested in taking over the company. 35. Mr. As such, it is submitted that because of the stiff opposition of the financial institutions and the bank M/s. Martin Burn Ltd. submitted before the BIFR that they are no longer interested in taking over the company. 35. Mr. Mitra also referred to the findings of the BIFR wherein it has been held that the State Bank of Bikaner & Jaipur expressed its inability to extend the working capital facilities to the company without the association of other banks and it was also expressed on their behalf their unwillingness to increase their investment in the company and declaration not extend the Term Loans. From the acts and conducts of the banks and the financial institutions, it is clear that they are acting contrary to the interest of the workers and rehabilitation of the company, which is the paramount consideration of the financial institutions and the bank, and they advanced money only for that purpose but they allowed the company to close down for 7 years and allowed the interest to be mount up and now standing in the way of revival of the company. 36. Mr. Mitra referred to a decision reported in Shri Anadi Mukta Sadguru Shree Mukherjee Vandasjiswami Suvarma Jayanti Mahatsav Samark Trust & other vs. Rudani & other, AIR 1989 SC 1607 . It is submitted by Mr. Mitra that technicalities should not stand in the way of giving relief to the workers and the revival of the company. The power of the Court is wider than BIFR and the matter should not be sent to the BIFR because BIFR will only see the technicalities of the matter, but this is high time that the whole matter should be taken on humanitarian approach as most of the industries in West Bengal including the company in dispute has become sick and unless and until a broader view is taken and the Court comes out of its shell to give protection to the worker and the revival of the company, then the whole matter will become infructuous. In writ jurisdiction, the power of the court is wide and the modern concept is that the court will do anything and everything for the purpose of doing good to the parties, specially the workers and for the revival of the industry no technical ground should stand in the way of giving relief. In writ jurisdiction, the power of the court is wide and the modern concept is that the court will do anything and everything for the purpose of doing good to the parties, specially the workers and for the revival of the industry no technical ground should stand in the way of giving relief. However, he further submitted that court is at liberty to put such restrictions and protections so that the assets of the company remain intact and the valuation of the assets are not diminished. 37. It was alleged that a Writ Court have no power to frame a scheme for the purpose of running the industry as it is stated that such power is only vested in the company court. Supreme Court in the case of Basappa vs. T. Nagappa, AIR 1954 SC 44 , pointed out that the language used in articles 32 and 226 of the Constitution is very wide and the powers of the Supreme Court as well as High Courts in India extend to issuing of orders, writs or directions including writs in the nature of Habeas Corpus, Mandamus, Quo-warranto prohibition and certiorari as may be construed necessary for the enforcement of all fundamental rights and in the case of High Courts for other purposes as well. In view of the expressed provision in our Constitution the Court need not now look back to the early history or the procedural technicalities of its needs in English Law or feel oppressed by any difference or change of opinion expressed in particular case by English Judges. In Dwarka Nath vs. Income Tax Officer, AIR 1966 SC 81 . Supreme Court explained the scope of writ jurisdiction under the Indian Constitution and held that High Court can issue writ in the nature of prerogative writ as understood in English but the scope of those writs also is widened by the use of the expression nature which expression does note equate the writs that can be issued in India with those in English but only drawn analogy from them. That apart High Court can also issue directions, order or writs other than prerogative writs. The High Courts are entitled to mould reliefs to meet the particular and complicated requirements of this country. That apart High Court can also issue directions, order or writs other than prerogative writs. The High Courts are entitled to mould reliefs to meet the particular and complicated requirements of this country. To equate the scope of the power as to High Court under Article 226 of the Constitution with that of the English Court, to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over years in a comparatively small country like English with a unitary form of government to a vast country like India functioning under a federal construction, such a construction would defeat the purpose of the Article itself. M.C. Mehta vs. Union of India, AIR 1987 SC 1086 , the force of the company particularly in winding up matters have been considered by the Supreme Court for the first time in the case of National Textile Workers Union vs. P.R. Ramkrishnan, AIR 1983 SC 75 . In this case the question that arose for consideration of the Supreme Court was related to the right of workmen employed in a company to appear and to appose the prayer for winding up of the company. In that connection it was held by the Supreme Court the "It is now accepted on all hands, even in predominantly capitalist countries, that a company is not property. The traditional view that the company is the property of the shareholders is not an exploded myth. There was a time when a group controlling the majority of shares in a company used to say this is our concern. We can do what we like with it." The ownership of the concern was identified with those who brought in capital. That was the outcome of the property minded capitalistic society in which the concept of company originated. But this view can no longer be regarded as valid in the light of the changing socio-economic concepts and values. We can do what we like with it." The ownership of the concern was identified with those who brought in capital. That was the outcome of the property minded capitalistic society in which the concept of company originated. But this view can no longer be regarded as valid in the light of the changing socio-economic concepts and values. Today social scientists and thinkers regard a company as a living, vital and dynamic, social organism when it was held that the Supreme Court under Article 32(1) of the Constitution is free to devise a procedure appropriate for the particular purpose of the proceeding, namely, enforcement of fundamental rights and under Article 32(2) the Court has the impressive power to issue whatever direction order or writ is necessary in a given case, including all incidental and ancillary power necessary to secure enforcement of the fundamental rights. The power of the Court is not only in an injunctive in ambit that is, preventing the infringement of the fundamental rights, it is also remedial in scope and provides relief against a breach of fundamental right already committed. If the Court is powerless to issue and direction, order or writ in a case where fundamental rights has already been violated, Article 32 of the Constitution would draw of its efficacy because then the situation would be that if fundamental rights as settled to be violated, the court can injunct such violation but if the violator is quick enough to take action infringing the fundamental rights, he would escape from the net of Article 32. That would be a large extent emasculate the fundamental right guaranteed under Article 32 and render it imagined and futile. It must, therefore, be said that Article 32 is not powerless to assist a person when he finds that his fundamental right has been violated he can that event seek remedial assistance under Article 32. The power of the Court on the ground of such a remedial relief may include the power to award compensation in appropriate cases. In the instant case industry is closed for a number of years as a result of which a large number of skilled workers have been made jobless and that they are passing their days with great hardship. Their existence is at stake. That apart, already some of the workers have committed suicide also have died out to starvation. In the instant case industry is closed for a number of years as a result of which a large number of skilled workers have been made jobless and that they are passing their days with great hardship. Their existence is at stake. That apart, already some of the workers have committed suicide also have died out to starvation. The workers have also come forward for seeking protection of this court for the purpose of reopening of the factory so that they can get themselves employed and survived. The Court while considering the case of this nature, has to keep in mind the declared policy in the Constitution enshrined in the preamble of the Constitution which secures to all its citizens justice, social and economic and political. When a large number of workers had remained jobless and no steps are taken from and quarters to protect them or to do something for them so that they may survive. It is now well settled that right to work is one of the fundamental principles of our Constitution. Article 41 of the Constitution provides that state shall within the limits of its economic capacity and development make effective provision for securing the rights to work, to education and public assistance, in case of employment, old age, sickness and disablement and in other cases of un-reserved want. It may not possible on the part of the State to secure right to work to give public assistance in case of unemployment of such a large number of workers but the spirit of Article 41 which is in the Chapter of Directive Principles of the State policy cannot be list sight of by the court when the matter comes up before the court and when the court feels that something is to be done for a large number of workers who became unemployed by virtue of closer of any industry. The right of workers in firm and deep rooted affiliations with the rest of the community in which it functions. It would be wrong to look upon it as something belonging exclusively to the shareholders. It is true that the shareholders bring capital, but capital is not enough. It is only one of the factors which contributes to the protection of national wealth. There is another equally, if not more, important factor of production and that is labour. It would be wrong to look upon it as something belonging exclusively to the shareholders. It is true that the shareholders bring capital, but capital is not enough. It is only one of the factors which contributes to the protection of national wealth. There is another equally, if not more, important factor of production and that is labour. Then there are the financial institutions and depositors, who provide the additional fiancé required for production and mostly there are the consumers and the rest of the members of the community who are initially interested in the product manufactured in the concern. Then how can it be said that capital, which is only one of the factors of production, should be regarded as owner having an exclusive domination over the concern, as if the concern belongs to it ? A company, according to the now socio-economic thinking is a social institution having duties and responsibilities towards the company in which it functions. 38. Supreme Court in Chiranji Lal vs. Union of India, AIR 1951 SC 41 , we should bear mind that a Corporation, which is engaged in production of commodities vitally essential to the community, has a social character of its own and it must not be regarded as a concern primarily or only of those who invested their money in it. The Constitutional mandate is very clear and undoubted that the management of the enterprise should not left entirely in the hands of suppliers of capital but the workers should also be entitled to participate in it, because in socialistic pattern of society, the enterprise which is the centre of economic power should be controlled not only by capital but also by labours. (See National Textile Workers Union case (supra). Accordingly on the basis of principles laid down in the above judgments of the Supreme Court and keeping in view to the Constitutional mandate, in my view, the court is not powerless to issue any order or directions under Article 226 of the Constitution for the purpose of reopening of an industry also in the interest of labourers who are at the point of death. The Creditor's liability has to be paid up but creditors cannot be allowed to stand in the way of not reopening the industry. The Creditor's liability has to be paid up but creditors cannot be allowed to stand in the way of not reopening the industry. These creditors are not private creditors but they are all public institutions discharging the public duties and as such, such creditors cannot take a stand that the industry should not be allowed to reopen and the Mill with its machineries should be sold solely for the purpose of realizing their debts by passing the interest of large number of workers who can earn their livelihood only if the Mill is reopened under a scheme. The workmen's right is their right of survival and right to Article 21 of the Constitution of India. If the industry under a scheme is allowed to reopen in that event creditor's interest would be secured and the industry would remain and as soon as it would be secured and the industry would remain and as soon as it would begin production its potentialities would also be grown. It cannot be attitude of any court to destroy anything but to preserve and to find out ways and means so that in industry can be reopened and function in the larger interest of the community. If the industry is reopened in that event it would not only provide job to the jobless workers, it would also create production which is necessary for economic development of this country. Accordingly, the objection taken by Mr. Sen about the maintainability of the writ application on the ground that the writ court have no jurisdiction to interfere and pass and order in such matters stands over-ruled. The power of the writ court is not confined to writs or writs in the nature of a particular writ but it has not jurisdiction to pass any orders or directions which may not be confined to the writs. The Constitution makers have made provision wider so that the court in appropriate case may grant proper relief to protect the rights of the people. In these days of unemployment and financial crisis, it is better to do a little wrong for a greater benefit to the society at large and particularly the workers who are suffering and some of whom had already left this world out of starvation. In these days of unemployment and financial crisis, it is better to do a little wrong for a greater benefit to the society at large and particularly the workers who are suffering and some of whom had already left this world out of starvation. If social and economic justice has to be administered in that event in the facts and circumstance of the case, the court is bound to exercise power to mitigate the hardships of the workers. Technicalities cannot be allowed to stand in the way of doing justice in an appropriate case. Right of the workers cannot be taken so lightly. The court has to take a view which is dynamic. The court should active and should not be bound by precedents in a new and changing situation. In Indra Sawhney vs. Union of India, 1992 Supp (3) SCC 217, held that when new societal conditions and factual situations demand the Judges to speak they, without professing the tradition of judicial lock law, must speak out. The Court in my view is entitled to evolve any devise for the purpose of protecting the rights of the people and/or to save the workers from unemployment and starvation. There is a saying that necessity knows no law when there is a necessity, it will prevail over the law and law cannot stand in the way of getting things which are essential for the purpose of survival of workers. 39. Considering the facts and circumstance of the case, it is ordered that the orders dated 14.11.1988 and 24.6.1992 formed by the BIFR, being annexure A and E to petition, are hereby cancelled and the Board of Directors of Dunbar Mills Ltd. i.e. respondent no.11, are directed to handover possession, management and control of the company to the petitioners for the normal working of the mills in terms of this order. The respondent no.13, Calcutta Electric Supply Corporation, is also directed to restore the supply of electricity to the respondent no.1 for the running of the factory and for the present a proper workable, reasonable, viable and feasible scheme is made, which would be modified from time to time for the purpose of the proper running the mill and enabling the workers to get their legitimate dues and the amount which is payable to the bank and the financial institutions and other secured creditors and the defendant no.12 will get their amounts in the manner which is set down in the scheme hereinbelow. For the purpose of running of the factory and for the safety and security of the bank and other financial institutions, the respondent no.12 and also the company, the respondent no.11 Shri Ashok Banerjee, advocate Shri Sibdas Banerjee, advocate are appointed as Joint Special Officers who will act either jointly or severely. Mr. Sibdas Banerjee is appointed without remuneration and Mr. Ashok Banerjee is entitled to a remuneration of 300 grams per month and the Joint Special Officers would be entitled to appoint any person of their choice to look after the safety of the properties and also to supervise the day to day affairs which would be conducted by the petitioner and such person be appointed with a remuneration of 200 grams per month:- 1. The movable and immovable of the company will not be sold without the consent and approval of the Special Officer and if any movable and/or immovable property is required to be sold, the same shall be replaced first. 2. The properties of the Company, i.e. the land, building machineries, all fixed and current assets will only be used for the purpose of running the business and for no other purpose. 3. The Special Officer is directed to appoint a Registered Valuer who will make the valuation of the assets including land, building, machineries and all other movable and immovable assets and an Auditor would also be appointed by the Special Officer, who will ascertain the liabilities of the Company as on 31.3.1993. 4. The Special Officer while carrying out the process of valuation shall ensue that the following measures are taken care of:- (i) Necessary general cleaning of compound and all factory shades, minimum required office and living space. 4. The Special Officer while carrying out the process of valuation shall ensue that the following measures are taken care of:- (i) Necessary general cleaning of compound and all factory shades, minimum required office and living space. (ii) Complete inventorisation and physical verification of all fixed assets of the Company including the entire plant and machineries in various departmental of the Mills. (iii) Complete inventorisation and physical verification of all current assets of the Company including raw material, work in process, grey/semi-finished/finished stock of manufactured goods i.e. yard and fabric etc. (iv) Complete inventorisation and physical verification and/or estimation of other current assets including stores and consumable materials, fuel, spare parts tools, etc. (v) Complete inventorisation and physical verification and/or estimation of waste, scrap materials and other disposable items along with the estimate of their present realizable value. (vi) Identification and listing of disposable surplus fixed assts and current assts, estimation of their present realizable fair value. (vii) Preparation of the company accounts and financial statements showing the true and fair view of its state of affairs as on 31.3.1993. 5. After completion of the steps to be taken as embodied in paragraph 4 hereinbelow the Special Officer shall formulate a scheme for the purpose of payments to be made to the Bank financial institutions and all concerned on the basis of the amount recoverable after deducting the liabilities i.e. such liabilities which according to statutes have prior charges such payments are to be made on pro-rata basis in accordance with law, and not on the basis of the amount as mentioned in the scheme. In other words, the Banks and financial institutions will accept full satisfaction of their claims on pro-rata basis after the statutory liabilities are deducted from the value of the assets. 6. So far as the plant and machineries belonging to the respondent no.12 lying in the Mills of the respondent no.11 are concerned which are stated to be free from all encumbrances charges or lien the said plant machineries will remain in the custody of the Special Officer while framing the scheme shall consider the manner in which the interest of the respondent no.12 can be taken care of. 7. 7. If, for any reason, the petitioners feel that some machinery is useless for the running of the factory and the same should be sold, in that event, the petitioners will take written permission from the Special Officer and the Special Officer after inspection of the machinery and after asking report from the expert, who would be appointed by the Special Officer at his sole discretion, will permit the petitioners to sell those machinery and the sale proceeds thereof will be invested for the purpose of purchasing the machinery for running of the factory and for no other purpose. The bank, financial institutions, Calcutta Electric Supply Corporation and other creditors will get their dues in proportion to their claims, which would be decided after ascertaining the value of the assets and also the amounts of the liabilities and after deduction of the liabilities from the assets whatever amount would be there, the same should be distributed for payment of the dues of the bank, financial institutions, Calcutta Electric Supply Corporation and other creditors including the defendant no.12 and the installments would be fixed by the Special Officer for such payment keeping in mind that the running of the factory is not hampered in any manner whatsoever and such decision will be taken in a meeting between the bank, financial institutions, defendant no.12 and the petitioner, which would be presided by the Special Officer and if there is difference in opinion, the parties will be at liberty to seek direction from the Court for the purpose of ascertaining what amount will be payable to the bank, financial institutions, defendant no.12 and/or other creditors and at what rate and at what installment. 8. However, the petitioners will invest Rs. 1,10,000/- within April 1993 and thereafter will invest a further sum of Rs. 1,40,00,000/- by April 1994. If, for any reason, the petitioners are unable to run the factory, then the petitioners will have no claim whatsoever upon the defendant no.11 or and body and upon the moneys so invested by the petitioner. 9. The Special Officer will also appoint Security Guards, who will remain in gates and the expenses for such Security Guards would be borne by the petitioners. The Security Guards would be answerable to the Special Officer alone and to nobodyelse. 9. The Special Officer will also appoint Security Guards, who will remain in gates and the expenses for such Security Guards would be borne by the petitioners. The Security Guards would be answerable to the Special Officer alone and to nobodyelse. For all practical purpose the entire factory with all movable and immovable properties, books of accounts and other assets shall be deemed to be in possession and custody of the Special Officer. 10. All the parties in the proceedings further directed as follows:- I. To assist the Special Officer appointed by this Court in all possible manner. II. The petitioners and any other parties who have shown their interest details from the Special Officer of the Court as required by them to work out a final workable scheme for the purpose. Further, they to consider bringing large amount of funds as much as necessary and possible for them to do, as also show to the satisfaction of the Court their sources for bringing such funds, besides producing the audited statement of accounts of their group/associates. They are to further consider and purpose better terms for faster liquidation of the dues of Banks and Financial Institutions. III. The Institutions and Bank to consider supporting the schemes of rehabilitation of the company as per their policy, of which the press report a Annexure-A of the Affidavit-in-reply of the petitioners is suggestive, whether allowing some higher concessions for the purpose would be acceptable to them in larger interest. IV. The Institutions and the respondent no.12 to consider if they can arrive at a settlement between them on the lines as the matter are stated to have been settled between the respondent no.5 and the respondent no.12 enabling the institutions to receive some amount towards their dues while keeping all their rights in their securities alive against the respondent no.11. V. The Calcutta Electric Supply Corporation (I) Ltd. i.e. the respondent no.13 is directed to consider arriving at an amicable settlement with the petitioner so as to ensure reconnection of electricity line at the Mills of the respondent no.11 is given to enable the Mills to be opened at an early date. VI. Employees State Institutions Corporation the respondent nos. V. The Calcutta Electric Supply Corporation (I) Ltd. i.e. the respondent no.13 is directed to consider arriving at an amicable settlement with the petitioner so as to ensure reconnection of electricity line at the Mills of the respondent no.11 is given to enable the Mills to be opened at an early date. VI. Employees State Institutions Corporation the respondent nos. 9 & 10 are directed to consider to arrive at a settlement commensurate with so that the recovery of their dues are adequately protected and at the same time the rehabilitation of the respondent no.11 is facilitated. 40. The consideration as stated hereinabove should be completed within 8 weeks from the date of passing of the order. That the Special Officer either by themselves or their agent and/or appointed person will make their inventories of the articles both movable and immovable before delivering the possession of the factory in terms of this order. 41. The Joint Special Officer will be at liberty to inspect the pervious books of accounts for the purpose of ascertaining the liabilities of the Mill. 42. The writ petition is disposed of. Liberty to mention for clarification and/or modification of this order. There will be order in the application field by Mr. Bimal Chatterjee. There will be no order as to costs. 43. Mr. A.K. Dhandhania, learned advocate appearing for the respondent nos.2, 3 and 4, Mr. Sandip Banerjee, learned advocate appearing for respondent no.5, Dr. Tapas Banerjee, learned advocate for respondent no.12, Mr. Asim Banerjee, learned advocate for respondent no.11, Mr. Subal Mitra, learned advocate for respondent no.10, Mr. Swarnendu Ghosh, learned advocate for Balaram Chowdhury & others and Mr. Utpal Mazumdar, learned advocate for Agent India Ltd. other pray for stay of operation of this order. Prayer is considered and rejected. All parties are to act on as signed xerox copy of the judgment on usual undertaking.