JUDGMENT 1. This writ petition dated 30.11.2012 is directed against an order dated 28.09.2012 passed by the Appellate Authority for Industrial & Financial Reconstruction, New Delhi (hereafter the 'AAIFR' for short) on MA No. 666 of 2010 filed by the third respondent herein. By the said order, the AAIFR vacated an order of status quo that was passed on 20.09.2010 while issuing notice in respect of Appeal No. 231 of 2010, preferred by the petitioners. In the appeal, the order dated 16.06.2010 passed by the Board for Industrial & Financial Reconstruction (hereafter 'BIFR') was under challenge. It was held by the BIFR as follows: "2.4 After taking into consideration the submissions made and material on record, the Bench stated that the reference of M/s Polar Industries Ltd. stands abated under the third proviso of section 15(1) of SICA as ARCIL has taken and completed action under section 13(4) of SARFAESI Act. The Miscellaneous Application No. 369 in Case No.33 of 2007 M/s Polar Industries Ltd. is disposed of accordingly." 2. The said order was carried in appeal by the petitioners mainly on two grounds. First, it was urged that the BIFR by its order dated 20.05.2010 had fixed 08.07.2010 as the next date of hearing and that the petitioners, despite being served with copy of MA No. 369 of 2010, were not aware that the same was likely to be heard on 16.06.2010; therefore, they went un-represented and the order is in complete breach of natural justice. Secondly, it was urged that the possession notice issued by the third respondent was a nullity since the Commercial Tax Officer, Noida had taken possession of the subject property and, therefore, pre-condition for taking possession under section 13(4) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereafter the 2002 Act) had not been fulfilled. 3. Mr. Mitra, learned advocate representing the petitioners contends that the AAIFR failed to consider that the jurisdictional fact for invoking the provisions of the 2002 Act had not been fulfilled and, therefore, measure taken under section 34(4) thereof was without jurisdiction. 3. Mr. Mitra, learned advocate representing the petitioners contends that the AAIFR failed to consider that the jurisdictional fact for invoking the provisions of the 2002 Act had not been fulfilled and, therefore, measure taken under section 34(4) thereof was without jurisdiction. According to him, the third respondent does not represent the 3/4th value of the amount outstanding against the financial assistance to the first petitioner as required in terms of section 15(1) of the Sick Industrial Companies (Special Provisions) Act, 1985 and, thus, the proceedings initiated under the 2002 Act are without jurisdiction. 4. It is further submitted by him that since the other ground raised in the appeal was in respect of breach of natural justice, the AAIFR ought not to have vacated the interim order while keeping the appeal pending. 5. In course of hearing, Mr. Mitra also invited the attention of the Court to the order of the BIFR dated 16.06.2010 to contend that there was no independent finding in respect of the jurisdictional fact for invocation of the 2002 Act. 6. Mr. Saraf, learned advocate appearing for the third respondent opposed the writ petition. According to him, the orders passed by the BIFR right from 27.04.2010 ought to be considered and perusal thereof would clearly reveal that the third respondent holds more than 75% debt of the first petitioner, necessitating invocation of the provisions of the 2002 Act. It is also submitted by him that in terms of the procedure for listing of reference and miscellaneous applications in the BIFR, MA 369 of 2010 was to be listed on the sixth working day after filing thereof and regard being had to the provisions contained in the other clauses of paragraph 4, it was obligatory for the petitioners to watch the daily cause list as well as the notices displayed on the website and the notice board of the BIFR. According to him, the petitioners despite being served with copy of MA 369 of 2010 did not enter appearance on 16.06.2010 resulting in the ex parte order being passed and no illegality having been committed either by the BIFR or the AAIFR, the writ petition merits rejection. 7. I have heard learned advocates for the parties and perused the materials on record. 8. The order dated 27.04.2010 passed by the BIFR records as follows: "2.9. 7. I have heard learned advocates for the parties and perused the materials on record. 8. The order dated 27.04.2010 passed by the BIFR records as follows: "2.9. After considering the submissions made the Bench was satisfied that ARCIL who is holding more than 75% debt of the company has taken physical possession of company's assets located at NOIDA (UP) under section 13 (4) of SAFRAESI Act. ARCIL had further stated that the reference of the company should abate before the Board. Since the ld. counsel, who claimed to represent the company, was unable to furnish his Vakalatnama authorizing him to appear on behalf of the company, the Bench consequently has not taken cognizance of submissions made by him in Court. Moreover, as per Form 'A' submitted by the company, the company had four units viz Ceiling Fan Division (NOIDA), Sumach Division, Kolkata, PFI Division, Kolkata and Roorkee Division. The current status of these units is not known and none present could enlighten us on the same. The Bench hence ordered that the reference shall abate under section 15(1) of SICA in case the company is now left only with one unit at NOIDA. The factual position is to be confirmed, and a hearing shall be held on 20.05.2010 to determine the same." 9. On 20.05.2010, the BIFR recorded submissions of the learned advocate for the petitioners to the following effect: "2.2 The ld. advocate appearing on behalf of the company stated that the company had 4 units viz. 1st Unit at NOIDA, 2nd and 3rd units at Kolkata and 4th unit at Roorkee. The company's unit at NOIDA was taken over by ARCIL under section 13(4) of the SARFAESI Act. The company's unit located at Roorkee was rented accommodation and it had since been vacated. The company's 2 units located at Kolkata were still in the possession of the company. At this juncture, the ld. Advocate appearing on behalf of ARCIL, stated that ARCIL had issued No Objection Certificate to the company for disposal of both the units located at Kolkata in 2008. On a query from the Bench, as to whether the company was working, the ld. advocate appearing on behalf of the company stated that the company had been closed for the last 6 months." 10. On a query from the Bench, as to whether the company was working, the ld. advocate appearing on behalf of the company stated that the company had been closed for the last 6 months." 10. Ultimately, the following directions were issued: "2.4 After considering the submissions made and the material on record, the Bench issued the following directions: (i) The company shall submit an affidavit alongwith documentary proof/evidence giving the status and details of units in their possession within 15 days. (ii) The company shall submit up-to-date ABSs and PBS as on 31.3.2010 to the Board with a copy to all the secured creditors, including ARCIL within 15 days. (iii) ARCIL shall submit an affidavit giving the detailed report on the status of company's units, whether charged to them, action initiated under SARFAESI Act and details of assets for which NOC issued and whether the company had disposed of the said assets. (iv) All secured creditors may physically verify the company's properties and submit a report to the Board. (v) Govt. of West Bengal is directed to carry out an inspection of company's 2 units located at Kolkata and submit a status report to the Board within 30 days. (vi) The company is hereby directed to cooperate with the secured creditors/Govt. of West Bengal for verifying the company's assets. (vii) The company shall give the details of the bank(s) with whom the company was operating its account(s). (viii) The next hearing in the case will be held on 8.7.2010." 11. The petitioners did not file an affidavit as directed by the BIFR on 20.05.2010; instead, on the same date, they communicated to the Bench Officer, Bench-I of the BIFR to the following effect: "This has reference to the hearing held in the above noted matter before the Hon'ble Board today wherein the affidavit dated 4.5.2010 was taken up the consideration by the Hon'ble Bench. During the course of the hearing, the counsel appearing on behalf of ARCIL had disputed the fact that the possession of the remaining three units was still with the company. During the course of the hearing, the counsel appearing on behalf of ARCIL had disputed the fact that the possession of the remaining three units was still with the company. In view of the objection so raised by the counsel for the ARCIL, the Hon'ble Bench had orally enquired in to the current status of the possession of the remaining three units of the Company, since in paragraph 15 of the said affidavit dated 4.5.2010 it was stated on behalf of the Company that the possession of the three properties was still with the Company. That there was an ambiguity as to the current status of the physical possession of the remaining three units, the.......illegible..........for the Company discussed the same immediately after the hearing today. In the discussion after..........illegible........of records of the Company, it has been borne out thus the statement made in paragraph 15 of the said affidavit dated 4.5.2010 was made erroneously and the Company is not in possession of the remaining three units. The undersigned therefore under instructions from the Company wishes to place on record the clarification of the...........illegible.........by the Hon'ble Bench during the course of the hearing today as aforesaid." 12. It was only after this letter was issued by the petitioners that the third respondent filed MA 369 of 2010 seeking the following relief: "In the facts and circumstances as stated above, it is most respectfully prayed to this Hon'ble Board: (a) To abate the present reference in view of the fact that the secured creditors have taken action against the Company under SARFAESI Act and............." 13. On such application, the BIFR passed the order which has been extracted (supra). It is found that despite findings recorded by the BIFR in the order dated 27.04.2010 as well as in the subsequent order dated 20.05.2010 that the third respondent was holding more than 75% of the debt of the first petitioner, there was no real objection from the side of the petitioners. In fact, the claim of the third respondent was based on the earlier orders as well as a letter dated 17.03.2009, addressed to the Vice-President of the third respondent by the Company Secretary of the first petitioner. The said letter records that the third respondent is the major lender of the first petitioner, having almost 94.42% of debts of the first petitioner and, thereby, has first charge on the property. The said letter records that the third respondent is the major lender of the first petitioner, having almost 94.42% of debts of the first petitioner and, thereby, has first charge on the property. It would appear on a conjoint reading of the orders dated 27.04.2010 and 20.05.2010 that the former did not record abatement of the reference because of certain confusion in respect of factual aspects. Such confusion stood obliterated once the petitioners, by their communication dated 20.05.2010, cleared the position in respect of the three properties (two in Kolkata and one in Roorkee). 14. In view of the communication dated 20.05.2010 referred to supra, the order of the BIFR recorded on 27.04.2010 to the effect that the reference would abate under section 15(1) of the Act of 1985 naturally came into play, and the reference would have abated automatically. This is exactly what the BIFR directed and the AAIFR confirmed. 15. I am of the considered view that although the petitioners were not heard on 16.06.2010 by the BIFR, there has been no failure of justice warranting intervention. 16. The writ petition stands dismissed, without orders. 17. This order is passed without prejudice to the rights and contentions of other creditors and they shall be free to pursue their remedy in accordance with law for recovery of their dues. 18. Needless to observe, the proceedings under section 17(1) of the Act 2002, if initiated, shall be decided on its own merits without being influenced by dismissal of this writ petition. 19. Urgent photostat certified copy of this order, if applied for, be furnished to the parties as early as possible.