Judgment 1. In this writ petition, prayer is for issuance of a writ in the nature of a writ of prohibition commanding the Debt Recovery Tribunal (respondent no.2) not to proceed with Original Application No. 21 of 1998 filed by the State Bank of India (respondent no.1).The petitioner further prays for issuance of a writ in the nature of a writ of mandamus commanding respondent no.1 to forthwith give effect to and implement the rehabilitation proposal of respondents no. 3 and 4, namely, the Director of Industry cum Chairman (Apex Body) and the Regional Director, Reserve Bank of India, Bihar respectively. 2. In short the relevant facts are that the petitioner Company was established in the year 1992. They applied for working capital loan of Rs. 72,00,000/- to the State Bank of India against which the Bank sanctioned Rs. 34,00,000/- on 27.2.1992. On 12.10.1994 the Bank conducted fresh appraisal of working capital for Rs. 74.5 lacs and further sanctioned Rs. 45,00,000/- as working capital on 31.1.1995. However, in the year 1998 the Bank filed O.A.No. 21 of 1998 for recovery of the loan. The further case of the petitioner is that on 17.8.1998 the petitioner was declared sick by the Apex Body and was issued sick certificate on 7.12.1998. However, State Bank of India in meeting for rehabilitation on 2.6.1999 putforth condition of 65-70% viability for rehabilitation. The viability report submitted on 12.8.1999 shown 65-70% in respect of the petitioner herein. Accordingly, on 20.12.1999 the rehabilitation proposal was approved by the Apex Body. On 25.4.2001 the State Bank of India for the first time mentioned about the pendency of the recovery proceeding and refused to follow decisions for rehabilitation. On 25.7.2001 the Apex Body disapproved of the attitude of the State Bank of India and on 13.8.2001 directed the State Bank of India to implement rehabilitation proposal as approved. On 26.7.2001 the Recovery Tribunal on being informed refused to take cognizance of the rehabilitation proposal and declined to stay the proceedings before it on the plea that it was not concerned with the rehabilitation proceeding. 3. On 26.7.2001 the Recovery Tribunal on being informed refused to take cognizance of the rehabilitation proposal and declined to stay the proceedings before it on the plea that it was not concerned with the rehabilitation proceeding. 3. A counter affidavit has been filed on behalf of the respondent Bank in which the facts aforementioned are not disputed but it alleged that in spite of the fact that the Bank granted enhancement in the loan limit to meet the working capital requirement the petitioner for the reasons best known to it did not do well and claimed to have become sick and wanted the Bank to enhance its financial exposure in the name of rehabilitation. It is contended that the Bank being a financial institution and operating with the public money to take commercial decision as to whether to the best of the judgment of the Bank it could have enhanced its exposure any further or not the Bank could not have allowed wastage of public money to individual interest and interest has to give way to public interest. The Bank has not challenged or denied the provisions of industrial policy which has been announced by the State Government for attracting investment for industrial growth in the State of Bihar but, however, contended that it being a financial institution when question of any commercial decision arises it could not have been compelled to act against its interest by the decision of others including the Apex Body as the Apex Body had only to consider about the rehabilitation and it could not have made finances available for the industrial unit of the petitioner. It is alleged that the petitioner had made itself disentitled from any consideration for rehabilitation for which only the management of the petitioner company could be blamed as the petitioner had committed the breach of terms of sanction of loan to deposit the sale proceeds of its unit in the account and started misappropriating the sale proceed and in the year 1996 when the Field Officer of the respondent Bank visited at the site they merely assured that they will deposit the sale proceeds which they did not do. Further, in paragraph 24 it is stated that the respondent Bank did not agree to the decision of the Rehabilitation Package made by the Apex Body as it could not have enhanced its financial exposure and showed its inability to proceed further with the Rehabilitation Scheme. However, it is further stated that it is not correct to state that the respondent agreed to the rehabilitation proposal unconditionally. It is also stated that since the respondent Bank also made the appraisal and found that the petitioner unit was not a viable unit clarified that the implementation of package might not be possible. 4. In the counter affidavit filed on behalf of respondent no.3 it is admitted that the Apex Body/Committee recommended the unit to be declared as sick and accordingly, was provided sick registration vide letter No. 7412 dated 7.12.1998. The unit submitted its rehabilitation proposal on 24.12.1998 which was thoroughly discussed in the meeting of the Apex Body and in its 13th meeting held on 20th December, 1999 the rehabilitation proposal of the unit was approved. It is further stated that the Apex Body took decision after getting consent from all the concerned agencies in which the State Bank of India was also present 5. Considering the aforementioned averments this Court asked respondent no.3 to bring on record the extract of the relevant resolutions and pursuant thereto the same have been brought as Annexures C D and E to the second counter affidavit filed on his behalf. 6. Learned counsel for the petitioner has contended that the rehabilitation proposal was approved in the meeting to which the respondent Bank is also party keeping in view the industrial policy and guidelines framed by the Reserve Bank of India for financing the small scale units by the Nationalised Banks and also the procedure and methodology to be followed for rehabilitation of such financed units which become sick. According to the learned coun sel, the State Bank of India in its meeting for rehabilitation had putforth the only condition of 65-70% viability for rehabilitation which was met by the petitioner as is evident from the viability report dated 12.8.1999, contained in Annexure 5. According to the learned coun sel, the State Bank of India in its meeting for rehabilitation had putforth the only condition of 65-70% viability for rehabilitation which was met by the petitioner as is evident from the viability report dated 12.8.1999, contained in Annexure 5. In the said report submitted by the Director, Ministry of Industry, in the Government of India to the Chairman cum Director of Industries, Government of Bihar, it was concluded that the rehabilitation package is a viable proposition and further that the installed mac ery in the premises of the unit are in excellent condition with proper lay-out. it is also stated that the unit has also set up a testing laboratory with the latest equipments for testing. In view of the investment already made it was stated that it deserves rehabilitation packages, otherwise the huge investment made on plant and machinery, building etc. will go in vain. The copy of the same was also forwarded to the Assistant General Manager, State Bank of India. 7. It is thus contended by the learned counsel for the petitioner that the respondent Bank being a party to the decision for rehabilitation of the petitioner unit have arbitrarily gone back from it and have acted malafide so much so that it has refused to abide by the guidelines of the R.B.I, and the decisions for rehabilitation taken thereunder to which the Bank is also party. Learned counsel further contended that the respondent Bank cannot be permitted to challenge its own decision for rehabilitation by pressing the recovery proceedings before the respondent Tribunal as it would frustrate the entire rehabilitation proposal. 8. On the other hand, learned counsel for the Bank has submitted that the Bank cannot be compelled to act against its own interest and is quite justified to decline to act as per the decision for rehabilitation of the petitioning unit specially in the background of breach of terms of sanction of loan by the petitioner by not depositing the sale proceeds and also that despite enhancement of loan the petitioner unit has not done well and claimed to have become sick. 9. I fail to appreciate the said submission of the learned counsel for the Bank. The question of rehabilitation only arises if a unit become sick obviously because it could not do well for various reasons. 9. I fail to appreciate the said submission of the learned counsel for the Bank. The question of rehabilitation only arises if a unit become sick obviously because it could not do well for various reasons. However, the rehabilitation proposal was approved by the Apex Body to which the Bank was also party as is evident from the resolutions contained in Annexures C to E. The S.B.I had agreed that if the unit is viable on 65 and 70 per cent of its capacity utilisation, they would take up this unit under rehabilitation. The report of the Director, Ministry of Industry, in Government of India, contained in Annexure 5, clearly shows that the petitioners unit is viable on 65% to 70% of its capacity utilisation. 10. Under such circumstances, I find substance in the submission of the learned counsel for the petitioner that in the facts and circumstances of the present case the respondent State Bank of India cannot resile from the promise and withdraw themselves. The Supreme Court in the case of Assistant Commissioner of Commercial Taxes vs. Dharmendra Trading Company, reported in AIR 1988 S.C. 1247 , held that unless the relevant facts are brought on the record to show misuse of the scheme or undue advantages taken by the entrepreneurs, the Government cannot resile from the promise and withdraw the concessions. In the case of Ashok Paper Mills Kamgar Union vs. Union of India & Ors. reported in (1997)10 S.C.C. 113 , the Apex Court deprecated the attitude of IDBI taking out from the scheme of rehabilitation and thus, directed all the persons and institutions concerned to participate in the implementation of the Scheme and the Finance Secretary, Ministry of Finance, Government of India, was directed to ensure that the legal conditions are fulfilled and mill is rehabilitated. 11. In the instant case, it is not disputed that the rehabilitation proposal was approved as per the policy and guidelines framed by the Reserve Bank of India for financing small scale units by the nationalised Banks and also after following the procedure and methodology to be followed for rehabilitation of the unit. Thus, in my opinion, denial by the respondent State Bank of India to comply with the proposal approved on their agreement is wholly reprehensible and arbitrary. 12. Accordingly, this writ petition is allowed. Thus, in my opinion, denial by the respondent State Bank of India to comply with the proposal approved on their agreement is wholly reprehensible and arbitrary. 12. Accordingly, this writ petition is allowed. The respondent Tribunal is restrained from proceeding with Original Application No. 21 of 1998 and, further, this Court directs the respondent State Bank of India to give effect to and implement the rehabilitation proposal as in the resolutions contained in Annexures C to E forthwith.