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2001 DIGILAW 419 (PNJ)

Bajwa Agro Industries Ltd. v. Appellate Authority for Industrial Financial Reconstruction

2001-04-16

JAWAHAR LAL GUPTA, N.K.SUD

body2001
JUDGMENT Jawahar Lal Gupta, J. - On October 14, 1999, the Boad for Industrial and Financial Reconstruction found that the petitioner "fulfilled the criteria for Sick industrial Company in terms of Sections 3(1)(o)" of the Sick Industrial Companies (Special Provisions) Act, 1985. It was also "satisfied that the Company could not revive on its own and that it was in public interest on take measures specified under Section 18 of the Act". Accordingly, the Industrial Finance Corporation of the India (in short IFCI) was appointed as the Operating Agency "to examine the viability of the company and formulate a rehabilitation scheme for its revival if it was found viable". The guide- lines were laid down. The petitioner was inter alia directed to submit a "Comprehensive rehabilitation proposal with the means of finance fully tied up alongwith audited balance sheets for the last five years duly approved by their Board of Directors........within six weeks". It was also directed that in case "the company/promoters failed to submit their rehabilitation proposal within the specified time, the Bench might consider withdrawal of protection provided to the company under the provisions of the Act". The petitioner having failed to submit the proposal, the Board vide its order dated April 4, 2000 directed the Operating Agency to issue an advertisement "for change in management of the company inviting offers to take over/leasing/amalgamation/merger for rehabilitation, with or without One Time Settlement of the dues of Financial Institutions/Bank...." The "Present promoters" were also permitted to "submit an offer in response to the advertisement issued by the Operating Agency". A copy of this order has been produced as Annexure P.6 with the writ petition. On the next date viz. April 5, 2000, the petitioner submitted a proposal for the rehabilitation of the company and also filed an appeal. Vide order dated April 19, 2000, the appellant authority dismissed the appeal with the finding that the proposal was not viable. It was specifically observed that the margins were "too optimistic". A copy of this order is at Annexure P.8. Aggrieved by the orders, the petitioner-company has approached this Court through the present writ petition. It prays that the orders at Annexure P.6 and P.8 be quashed. 2. A short reply has been filed by respondent No. 3 viz. the IFCI only. A copy of this order is at Annexure P.8. Aggrieved by the orders, the petitioner-company has approached this Court through the present writ petition. It prays that the orders at Annexure P.6 and P.8 be quashed. 2. A short reply has been filed by respondent No. 3 viz. the IFCI only. It has been inter alia averred that its Order dated October 14, 1999, the petitioner had been asked to submit a rehabilitation proposal with means of finance fully tied up within a period of six weeks i.e. by December 1, 1999. It was made clear in para 9(vi) of the Order that extension of the time would be given. Since no proposal had been submitted, the respondent vide its letter of December 6, 1999 had informed the Board that the petitioner having failed to do the needful, suitable directions be given. A copy of this letter has been produced as Annexure R.3/1. On the same day, the petitioner had requested for extension of time of a further period of six weeks. However, by its letter dated December 9, 1999, the third respondent informed the Board that in its view, "the petitioner-company was not interested in rehabilitation and was using the provisions of SICA for insulating itself against any legal action". It has been further mentioned that the third respondent had "already filed a Recovery Application dated 23.12.1998 against the petitioner-company and its guarantors for recovery of its dues of Rs. 8,02,15,104/- in the Honble Debt Recovery Tribunal at Jaipur...." On this basis, it was urged that the protection as given to the Company be withdrawn so that the secured creditors could pursue their legal remedies. A copy of this letter has been produced as Annexure R-3/2. Ultimately on February 8, 2000, the IFCI (respondent No. 3) once again wrote to the Board pointing out that the petitioner had not "submitted any proposal....in the matter". Thus, it was submitted that the "promoters do not have any proposal for rehabilitation/are not interested in rehabilitation..." Thus, it was prayed that the secured creditors be granted permission to proceed against it. 3. The matter was considered by the Board and the order dated April 14, 2000 was passed. Thereafter, the petitioner had filed an appeal. However, it had not "bothered to explain the reason for delay in submission of the proposal". 3. The matter was considered by the Board and the order dated April 14, 2000 was passed. Thereafter, the petitioner had filed an appeal. However, it had not "bothered to explain the reason for delay in submission of the proposal". Despite that, the "proposal was examined by the Operating Agency and after detailed deliberations thereon, the OA expressed its inability to consider the same for various reasons as set forth in their letter dated 28.4.2000....." A copy of this letter has been produced as Annexure R.3/4. Finally, the matter was considered by the appellate authority. The appeal was dismissed. It has been pointed out that the petitioner owed a sum of Rs. 8,02,15,104/- to the third respondent as on December 22, 1998 and the interest thereon. Since the amount was increasing and the petitioner was delaying the matter, the third respondent maintains that the impugned orders as are legal and valid. 4. Counsel for the parties were heard by us today in the forenoon session. After hearing, we had found no merit in the contentions and pronounced the order dismissing the petition. We are now recording our reasons. 5. Mr. Rajiv Atma Ram, learned counsel for the petitioner contended that the action of the Board in ordering the issue of the advertisement vide its order dated April 4, 2000 (Annexure P.6 with the petition) and that of the appellate authority in dismissing the appeal were wholly illegal and violative of the principles of natural justice. Learned counsel placed reliance on the provisions of Regulation 26. The claim was controverted by Mr. Manish Jain who appeared for the third respondent. 6. The short issue that arises is - Have the respondents acted in violation of the principles of Natural Justice and Regulation 26 while passing the impugned orders? 7. The Parliament had enacted the sick Industrial Companies (Special Provisions) Act, 1985 "with a view to securing the timely detection of sick and potentially sick companies". Accordingly, the Board for Industrial and Financial Reconstruction (BIFER) was constituted and vested with "powers for speedy determination of preventive, ameliorative, remedial and other measurers" which needed to be taken with respect to the sick companies. An appellate authority was also provided. Certain amendments were made in the year 1992 to enhance the effectiveness of the Board. 8. Section 3 of the Act provides the definitions. An appellate authority was also provided. Certain amendments were made in the year 1992 to enhance the effectiveness of the Board. 8. Section 3 of the Act provides the definitions. In Sub-clause (b), the sick industrial company has been defined as under:- sick industrial company means an industrial company (being a company registered for not less than five years) which has at the end of any financial year accummulated losses equal to or exceeding its entire net worth. Explanation - For the removal of doubts, it is hereby declared that an industrial company existing immediately before the commencement of the Sick Industrial Companies (Special Provisions) Amendment Act, 1993, registered for not less than five years and having at the end of any financial year accummulated losses equal to or exceeding its entire net worth, shall be deemed to be a sick industrial company". Section 4 provides for the establishment of the Board. Section 5 empowers the Central Government to constitute the appellate authority. Under Section 13, the Board and the appellate authority have powers to regulate the procedure and conduct of business. Chapter III of the Act deals with the References, Enquiries and Schemes. Sections 15 to 22-A contain the relevant provisions. Under Section 15, the Board of Directors of the company are entitled to "make a reference to the Board for determination of the measures which shall be adopted with respect to the company" when it has become sick. It also empowers the Central Government, the State Government, the Reserve Bank and a Public Financial Institution to approach the Board. Under Section 16, the Board is empowered to make "such enquiry as it may deem fit for determining whether any industrial company has become a sick industrial company...." Section 17 authorises the Board to pass suitable orders on the completion of the enquiry. Section 18 deals with the preparation and sanction of schemes. The Act also entitles the authority to order rehabilitation by giving financial assistance or by making arrangement for continuing operations etc. during the enquiry. Provisions in this behalf are contained in Sections 19 and 19-A. Section 20 requires the Board to forward the case to the High Court when it finds that the company should be wound-up. Under Section 21, the Board can appoint an Operating Agency to prepare inventories etc. Under Section 22, the Board is empowered to order suspension of legal proceedings etc. Under Section 21, the Board can appoint an Operating Agency to prepare inventories etc. Under Section 22, the Board is empowered to order suspension of legal proceedings etc. which may be pending against the sick company. Still further, in the purported exercise of the power under Section 13, the Board has framed "the Board for Industrial and Financial Reconstructions Regulations, 1987". Regulation 26 provides as under :- "The Board shall, after giving to the informant and to the sick industrial company, if it is not the informant, a reasonable opportunity of making their submissions, pass such order as deemed fit under sub-sections (1), (2) (3) or (4) of Section 17". On a perusal of the provisions of the Act, it is clear that a speedy determination of the preventive, ameliorative and remedial measures is the sine qua non of all proceedings. This is essential to achieve the public propose of avoiding loss of production, employment and revenue. Any process which defeats this object has to be avoided. 9. What is the position in the present case ? The petitioner had approached the Board by way of a reference under Section 15 vide its letter of July 17,1999. The Board had given notices to various financial institutions and heard their representatives. By its order of October 14, 1999, a copy of which has been produced as Annexure P.2 with the writ petition, an Operating Agency way appointed and asked to submit a report regarding the petitioners rehabilitation. Necessary guide-lines were given. The Operating Agency was asked to get the assets of the company evaluated. The petitioner was called upon to submit a proposal for its rehabilitation. On receipt of the proposal, the Operating Agency had to carry out "a detailed techno-economic viability study". It had also to keep in view "the current industry profile as well as the perspective for the next 5-7 years with appropriate demand forecasting and taking into account competition faced from other units". What deserves specific mention is that after laying down guide-lines (as at (a) to (r) in the order) detailed directions were given in para 9. In particular, the petitioner was asked to submit a "comprehensive rehabilitation proposal with means of finance fully tied up...within six weeks". What deserves specific mention is that after laying down guide-lines (as at (a) to (r) in the order) detailed directions were given in para 9. In particular, the petitioner was asked to submit a "comprehensive rehabilitation proposal with means of finance fully tied up...within six weeks". It was also directed that the IFCI which was the Operating Agency "would submit a Status Report to the Board on 1.12.1999 advising as to whether or not the company/promoters had submitted their rehabilitation proposal with the means of finance fully tied up". It was made clear in para 9(vi) that "in case the company/promoters failed to submit their rehabilitation proposal within the specified time, the Bench might consider withdrawal of protection provided to the company under the provisions of the Act". Despite the specific directions, the petitioner had failed to submit a proposal for rehabilitation. The Operating Agency had vide its letter of December 6, 1999 communicated this information to the Board. On the same day, the petitioner had asked for extension of time by six weeks. The request should have been made on or before December 1, 1999. Irrespective of that, no proposal was submitted even within the further period of six weeks after December 1, 1999. Why ? Mr Rajiv Atma Ram said that the petitioner was negotiating. However, despite an objection from the respondents, no details regarding the negotiations which may or may not have been carried out by the petitioner with the Hindustan Lever Limited or any other company have been disclosed to the court. If such details had been furnished, it may have been possible for the petitioner to contend that it was making a bona fide effort to prepare a proper proposal. However, in the absence of any material on the record, it is impossible to resist the conclusion that the petitioner was only delaying matters and enjoying the protection under the Act. Faced with this situation, the Board had adopted the only available course under the Act. It had, thus, directed the Operating Agency to issue advertisement and to evaluate the merits of the offers. 10. It deserves mention that even the petitioner was permitted to make an offer. It was provided with an opportunity to participate in the proceedings. We find that in the circumstances of the case, the action of the Board was absolutely just and fair. 11. Mr. 10. It deserves mention that even the petitioner was permitted to make an offer. It was provided with an opportunity to participate in the proceedings. We find that in the circumstances of the case, the action of the Board was absolutely just and fair. 11. Mr. Rajiv Atma Ram contended that the order passed by the Board on April 4, 2000 was illegal. It was violative of the provisions of Regulation 26. The petitioner was entitled to be heard. If such an opportunity had been given, it could have been shown that the petitioner-company "was attempting to negotiate the arrangement wherein the solvent extraction plant could be worked out as a job work basis with the third party. The protracted negotiations involved in the same took considerable amount of time hence delaying the proposal". These averments have undoubtedly been made in Ground (F) in the petition. However, as already noticed, no material has been placed on record to support the submission. This is so despite the fact that the third respondent has categorically alleged that the petitioner "has cooked up an imaginary story". If the claim of the petitioner was correct, copies of the correspondence that may have been exchanged could have been placed on the file. None having been placed on the record, it is fair to assume that the stand taken by the third respondent is correct. 12. Mr. Rajiv Atma Ram also submitted that the "proposal was further delayed because in the meantime, an independent valuer had commenced the exercise of valuation.....which materially affected the preparation of the rehabilitation proposal...." This plea is also devoid of any merit. The respondent has categorically pointed out in para 15 of the written statement that "the work of valuation had commenced only on 20.1.2000...." By that date, not only the initial period of six weeks but even a further period of more than six weeks had expired. It is clearly established on the record that the petitioner had been granted six weeks time by order dated October 14, 1999. This period had expired on December 1, 1999. Thereafter, even if the petitioner is assumed to have been granted another period of six weeks, it had expired before the January 20, 2000. Thus, the plea that the delay in submission of proposal for rehabilitation had occurred on account of the work of valuation started by the Agency, is wholly untenable. 13. Thereafter, even if the petitioner is assumed to have been granted another period of six weeks, it had expired before the January 20, 2000. Thus, the plea that the delay in submission of proposal for rehabilitation had occurred on account of the work of valuation started by the Agency, is wholly untenable. 13. Mr. Rajiv Atma Ram contended that the Regulation 26 makes it incumbent upon the Board to grant reasonable opportunity before it passes any order under Section 17. It is undoubtedly so. However, in the present case, it is the admitted position that the order dated October 4, 1999, had been passed under Section 17(3). The petitioner had been duly heard before that order was passed. Thus, there was complete observance of the provisions of Regulation 26. It was the petitioner who had failed to comply with the direction given by the Board on October 14, 1999. The order dated April 4, 2000 is only a consequential order necessitated by the petitioners inaction. The petitioner cannot complain that Regulation 26 had not been followed. 14. Before the parting with the issue, it also deserves notice that provisions like Regulation 26 or the principles of natural justice cannot be put in a "strait-jacket". The principles of natural justice are not more than the principles of fair-play. These are only meant to promote justice. To ensure fairness of procedure. The requirements of principles of natural justice vary with the circumstances of each case. The basic rule is that a party should not "suffer in person or in purpose without an opportunity". However, in a situation requiring promptitude, the application of the principles of natural justice or requirement of a reasonable opportunity can be limited. Equally, the possibility of obstructive conduct can furnish an adequate justification for excluding the rule of hearing. In R v. Secretary of the State for Home Department, (1974) Queens Bench 313, Lord Denning had observed at page 325 that "the rules of natural justice must not be stretched too far. Only too often people who have done wrong seek to invoke the rules of natural justice so as to avoid the consequences". Nearer home, in Union of India and another v. Jesus Sales Corporation, 1996(4) SCC 69, it was observed as under :- "However, under different situations and conditions the requirement of compliance of the principles of natural justice vary. Only too often people who have done wrong seek to invoke the rules of natural justice so as to avoid the consequences". Nearer home, in Union of India and another v. Jesus Sales Corporation, 1996(4) SCC 69, it was observed as under :- "However, under different situations and conditions the requirement of compliance of the principles of natural justice vary. The courts cannot insist that under all circumstances and under different statutory provisions personal hearing have to be afforded to the persons concerned. If this principle of affording personal hearing is extended, whenever statutory authorities are vested with the power to exercise discretion in connection with statutory appeals, it shall lead to chaotic conditions, when principles of natural justice require an opportunity to be heard before an adverse order is passed on any appeal or application, it does not in all circumstances mean a personal hearing". 15. In the present case, the petitioner had been given an opportunity to submit a proposal. It was required to do so within six weeks. It had failed to comply with the direction. This was so despite the warning that if the needful is not done within six weeks, the protection may be withdrawn. The petitioner had not heeded the warning. Still further, the petitioner had requested for the extension of time. No order granting such an extension was produced. The petitioner had failed to even submit the proposal within the further period of six weeks asked for by it. Still, the petitioner complains that there was denial of reasonable opportunity. We are unable to accept the contention. Thus, it is held that the petitioner was intentionally delaying matters. It was misusing the protection granted to it. The Board was justified in passing the order dated April 4, 2000. 16. Faced with this situation, Mr. Rajiv Atma Ram contended that the defect pointed out by the Board stood rectified by the submission of the proposal on April 5, 2000. 17. The contention is misconceived. The proposal had been submitted after the Board had passed the final order. It was too late. After April 4, 2000, the proposal was wholly irrelevant and of no consequence. Since the petitioner had not submitted the proposal within the time granted to it, the order passed by the Board was absolutely legal and fair. 18. The contention is misconceived. The proposal had been submitted after the Board had passed the final order. It was too late. After April 4, 2000, the proposal was wholly irrelevant and of no consequence. Since the petitioner had not submitted the proposal within the time granted to it, the order passed by the Board was absolutely legal and fair. 18. Lastly, it was contended that the appellate authority had erred in examining the proposal submitted by the petitioner on April 5, 2000. It could have only examined the validity of the order passed by the Board on April 4, 2000. 19. Even this contention is misconceived. It is the petitioners own case that a proposal had been submitted on April 5, 2000. Obviously, this proposal was placed before the appellate authority. Having been confronted with the proposal, the authority had no alternative but to deal with it. It has been found as a fact that the proposal reflected too much optimism on the part of the petitioner. The proposal was not realistic. We are happy to note that even Mr. Rajiv Atma Ram did not try to justify the proposal. However, an attempt was made to contend that it was only a proposal. The Operating Agency could have suggested a modification. The modified proposal could have been acceptable to both sides. 20. This contention is also untenable. Such an effort had to be made within the time granted by the Board. Still further, it deserves notice that the petitioner was asked to submit a proposal. This had to be considered by the Operating Agency. Thereupon, a scheme for rehabilitation had to be prepared. Since the petitioner had submitted the proposal to the Agency on April 5, 2000, it had no choice but to comment upon it. The Agency had done nothing wrong in coming to the conclusion on that the proposal was not viable. 21. No other point was raised, However, before the parting with the case, it deserves notice that the petitioner-company was initially incorporated on March 24, 1993. It had acquired its present name on October 3, 1994. It had started the commercial production on April 16, 1995. Its losses had raised to Rs. 788.14 lacs on March 31, 1999. Thereafter, the figure has multiplied. Today, the company owes a substantial sum of money to not only the third respondent but also to the other Financial Institutions. It had acquired its present name on October 3, 1994. It had started the commercial production on April 16, 1995. Its losses had raised to Rs. 788.14 lacs on March 31, 1999. Thereafter, the figure has multiplied. Today, the company owes a substantial sum of money to not only the third respondent but also to the other Financial Institutions. These institutions have not been impleaded despite the fact that the Board had given notice to them and they had participated in the proceedings. No order can be passed to their prejudice in their absence. Irrespective of that, the company having failed to submit a proposal for rehabilitation, immediate steps to ensure against loss of revenue and to protect the states interests were essential. The orders passed by the Board and the appellate authority have precisely ensured that. The petitioner has been given an opportunity to make an offer. When the advertisement is issued, it can make its offer which shall be considered by the appropriate authority. Thus, no injustice has occurred. Consequently, no cause for interference in the exercise of discretionary and equitable jurisdiction under Article 226 is made out. Resultantly, we dismiss the petition. No costs. Petition dismissed.