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2012 DIGILAW 2986 (ALL)

R. R. International v. State of U. P. and Others

2012-12-20

ABHINAVA UPADHYA, ASHOK BHUSHAN

body2012
Abhinava Upadhya, J.; -- Civil Misc. Clarification/Modification Application No.320143 of 2012. Heard Smt. Archana Singh learned counsel for the applicant and Sri H.M.B. Sinha appearing for the petitioner. 2. This is an application praying for clarification/modification of the order dated 15th February, 2011 as modified on 26th April, 2012 to the effect that respondent-Bank is free to proceed against the petitioner under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. 3. The petitioner had come to this Court praying for following relief:- i) to issue a writ, order or direction in the nature of Certiorari to quash forthwith the recovery proceeding initiated by the prime lending institution. ii) to issue a writ, order or direction in the nature of Mandamus commanding the opposite parties not to take any coercive measures against the petitioners during pendency of Rehabilitation Proposal for declaration of petitioner unit as sick for rehabilitation package as per the Government Order issued by the Government of Uttar Pradesh from time to time. iii) to issue a writ, order or direction in the nature of Mandamus commanding the opposite party no. 8 to dispose of the Representation/Application of the petitioner for granting the Rehabilitation Package to the Unit in the light of Govt. Orders issued on 13.11.1995, 05.04.1999 and 09.06.2004 respectively....." 4. The matter was heard on 15th February, 2011 on which date petitioner made a statement that he did not press relief Nos. 1 and 2 and he was pressing relief No.3 only. Relief no.3 was for a direction to respondent No.8 to dispose of the representation/application of the petitioner for granting the rehabilitation package to the Unit in the light of the Government orders mentioned therein. The writ petition was disposed of with the following directions:- "Considering the facts and circumstances of the of the present case, submissions made by the learned counsel for the parties, ends of justice be served in disposing of the writ petition with the direction that the respondents no. 5 to 8 to take a appropriate steps for consideration for petitioner's rehabilitation proposal and decide the same within a period of four weeks from the date a copy of this order is produced. We provide that further the petitioner may produce certified copy of the order within three days before the respondents no. 5 to 8. 5 to 8 to take a appropriate steps for consideration for petitioner's rehabilitation proposal and decide the same within a period of four weeks from the date a copy of this order is produced. We provide that further the petitioner may produce certified copy of the order within three days before the respondents no. 5 to 8. We further provide that further proceeding by the Bank may be taken after decision is taken on the Rehabilitation package. With the above directions the writ petition is disposed of." 5. We while disposing of the writ petition directed respondent No.8 to consider the rehabilitation proposal submitted by the petitioner and decide the same within a period of four weeks and further directed the petitioner to produce a certified copy of the order before respondent No. 8 within three days. It was further provided that further proceeding by the Bank may be taken after decision is taken on the rehabilitation package. 6. A counter affidavit has been filed by the petitioner to this application stating that proposal of rehabilitation package was not decided by respondent No. 8 within the time allowed by the Court and it was decided only in April, 2012 by the Joint Director, Industries. 7. Sri H.M.B. Sinha, learned counsel for the petitioner submits that Bank, which was restrained from proceeding by order dated 15th February, 2011, proceeded under the 2002 Act and took possession on 8th December, 2011 and the Bank has now come up for modification of the order. He further submits that earlier also modification was prayed for on behalf of the Bank on which direction to respondents No.5 to 8 was modified as direction to respondent No.8 only and at that time no such modification was prayed as is now prayed. 8. When we disposed of the writ petition on 15th February, 2011, we issued direction to respondent No.8 (General Manager, District Industries Centre, Moradabad) to consider and take decision on the proposal of rehabilitation package within a period of four weeks. We further directed the petitioner to supply the certified copy of the order within three days with intention that petitioner's rehabilitation proposal be decided in a time bound manner. We further directed the petitioner to supply the certified copy of the order within three days with intention that petitioner's rehabilitation proposal be decided in a time bound manner. Our direction that further proceeding by the Bank may be taken after decision is taken on the rehabilitation package was for protecting the petitioner during the period when proposal of rehabilitation package was directed to be decided. Present is a case where for about one year respondent No.8 did not decide the proposal of rehabilitation package and during the said period the Court never meant that proceeding under the 2002 Act be stayed or prohibited perpetually. The protection granted to the petitioner was during the period the Court directed to decide the proposal of rehabilitation package and we clarify our earlier order dated 15.2.2011 accordingly. 9. Learned counsel for the petitioner submits that the application for modification was not filed at the relevant time and when the contempt application was filed by the petitioner, the Bank has come up with the modification application. We are of the view that application for clarification can be entertained by the Court any time and the mere fact that it was not filed before filing of the contempt application was not relevant nor it can preclude the Bank from filing the modification application. Learned counsel for the petitioner further submits that possession was taken by the Bank and the petitioner's rehabilitation package is not being honoured by the Bank. We are of the view that any subsequent act of the Bank gives a fresh cause of action to the petitioner which can always be challenged by the petitioner in the competent Court. 10. The application is disposed of accordingly. ______________