K. Ramaswamy, J. - (1.) Leave granted.
(2.) These appeals by special leave arise from the judgment and order of the Division Bench of the Delhi High Court made in Civil Writ Petition No. 1493/94 dated August 8, 1994. The appellants are respondent No. 3 and respondent No.4 - M/s. Flowmore Polyesters Ltd. (for short, 'Flowmore') in the writ petition and 3rd appellant - B.P. Mittal is a shareholder. Flowmore was closed from August 1990. Pursuant to a reference made by its Board of Directors under sub-section (1) of S.15 of the Sick Industrial Companies (Special Provisions) Act, 1985, (for short, 'SICA'). Flowmore was declared a sick industrial company (for short, 'sick company') by the Board for Industrial and Financial Reconstruction (for short, 'BIFR') by order dated December 6, 1991. By an order made under S.17(3) of SICA, the IFCI was appointed as operating agency (for short, 'OA') to prepare a financial package to revive Flowmore with a cut off date as 30-9-9-1992. By clause (3) thereof, OA was directed to examine the feasibility of amalgation of Flowmore with other "healthy companies or change of management of the company on stand-alone basis" and directed to submit its report by July 30, 1992. The OA invited offers from the parties evincing interest in the revival of Flowmore and requested to submit their revival proposal before May 15, 1992. The first appellant (for short, 'SRF'), the first respondent (for short 'Garware') and Assam Asbestos Limited (for short 'AAL') submitted their respective schemes. The schemes submitted on 15-7-1992 (after seeking three extensions) by Garware and AAL were on 'Stand Alone' basis while the one submitted by SRF was for "merger" of Flowmore with SRF.Despite the BIFR sending notices to all parties including Garware intimating that they would be heard on their respective schemes on October 5, 1992 and of receipt of such notices by them, Garware did not appear, SRF and AAL being represented through their agents were heard. On October 5, 1992, BIFR gave further time to SRF and AAL and all other bidders to submit their final offers along with their revival proposals to the OA by November 7, 1992 so as to enable it to submit its report by October 13, 1992. OA had stated at the hearing that SRF, Garware and AAL had already undertaken techno-economic viability study of Flowmore prior to the receipt of the proposals and "the consensus at the joint meeting of the banks and the institutions was that only the proposal of M/s. SRF Ltd. based on merger of the unit with SRF was acceptable". The BIFR passed an order stating in para 10 therein that the representatives of AAL shall submit by October 15, 1992 to the Bench (Board) and OA with a copy thereof to the banks and the institutions, the detailed proposals for rehabilitation of the company indicating the source of their technology and the expenditure involved therein. The OA was further directed to give detailed right-up on technology proposed to be utilised for manufacture of various products, break up of processing features, dues etc. All the proposals for revival of the unit if found unviable, the OA was required to explore the possibility of change of management. The copy of the order even though was sent to Garware, it did not file any revised scheme with OA or review application to the Board as to why its earlier proposal should not have been rejected. By proceedings dated October 19, 1992, BIFR, at the request of AAL, granted extension of time for submitting revised proposals to the OA up to November 7, 1992. It was further stated that "no further extension of time will be granted". Even this order was communicated to the Garware but it did not submit any revised scheme to the OA by November 7, 1992, BIFR sent notice on the report submitted by the OA on November 5, 1992, to all parties including Garware intimating that it would hear the matter on December 11, 1992 and Annexure B is the copy of the notice sent to all. On November 30, 1992, OA submitted its evaluation report as directed by BIFR on the revival proposal submitted by SRF and AAL. On December 3, 1992, Garware by its letter addressed to AAL offered its technical assistance to AAL for revival of Flowmore. On December 8, 1992, the OA submitted its report to BIFR along with minutes of the joint meeting it had held with banks and financial institutions. It would, therefore, be apparent that instead of submitting its revised proposal to the OA or BIFR, Garware had agreed with AAL to assist it for revival of Flowmore. At the time of hearing by BIFR , on December 11, 1992, the AAL had referred to and BIFR had taken note of the letter of Garware dated December 3, 1992, in which Garware had undertaken to assist AAL for the revival of Flowmore on stand - alone basis, as is evident from Para 3 of the proceedings at Page 130 of the paper book. Although time and again, Garware was given repeated opportunities to submit its revised scheme for revival of Flowmore on stand-alone basis, it had chosen to stand out from BIFR and had contracted with AAL to give its technical know how assistance to AAL for consideration for revival of Flowmore.
(3.) On December 11, 1992, BIFR had considered the proposals of SRF and AAL. At this juncture, it may be relevant to note that one ATCO, a U.S. based company, also represented to assist AAL and appeared before the Board which was directed to deposit by December 1992 an amount of one million U.S. dollars in a 'No Lien Account' with the Lead Bank, the State Bank of Saurashtra, and latter was directed to communicate, by December 21, 1992, to the OA with a copy marked to the BIFR whether ATCO had deposited the amount with them or not. AAL and ATCO were directed to submit by December 28, 1992 the revised proposal with the OA marking a copy of BIFR, besides making available any other information required by OA after adopting cut off date of 30th September, 1992. SRF was also directed to submit its modified revival proposal within the aforesaid period. The BIFR thereafter in the final order directed to submit to it by January 18, 1993 a revival report of SRF and AAL by January 18, 1993 along with minutes of its joint meeting with Banks and financial institutions. It had also ordered that "no request for extension of time either for deposit of fund or for submission of proposal shall be entertained in any case" and that it would hear the case as soon as OA submitted its report. On January 13, 1993, the OA submitted its report. Again on February 15, 1993, BIFR had sent notice to all parties including Garware intimating that it would hear the matter on March 18, 1993 (Annex - C is the notice). On March 18, 1993, Garware did not appear before the BIFR, BIFR noted that two schemes submitted by SRF and AAL were being considered. After hearing the parties, SRF, AAL/ATCO and Flowmore, the order was reserved. By this stage, ATCO had backed out from its earlier proposal and it did not deposit the amount as directed in the earlier proceedings. It would, thus, be clear that after submitting its revival proposal on stand-alone-basis, despite repeated directions and notices. Garware neither complied with the directions of the BIFR for modification of its original scheme as per the RBI guidelines nor evinced any further interest in the matter of revival of the sick company on stand-alone basis nor did it participate in any of the proceedings before BIFR.;