ASHOK BHUSHAN, J. - (1.) THESE three writ petitions have been filed by Shamken Group of Companies challenging the notices dated 26th May, 2006 issued under Section 13(2) of the Securitisation and Reconstruc­tion of Financial Assets and Enforcement of Security Interest Act, 2002 by respondent No.4, an Asset Reconstruction Company.
(2.) ALL these writ petitions, raising similar questions, have been heard together and are being finally decided by this common judg­ment. We have heard Sri Naveen Sinha, Se­nior Advocate, assisted by Sri Anurag Khanna for the writ petitioner, Sushmita Banerji as­sisted by Sri Ashok Srivastava on behalf of respondent No.4 and learned Standing Coun­sel appearing for respondents Nos.l, 2 and 3.
(3.) IT is sufficient to note the facts of Writ Petition No.56270 of 2009 in some detail for deciding the issues raised in all these writ pe­titions. Writ Petition No.56270 of 2009 has been filed by Shamken Spinners Limited, which is a registered company under the Companies Act, 1956. The petitioner Com­pany started commercial production with capital investment of about Rs.45 crores. The respondent No.4 is registered under the Securitisation and Reconstruction of Finan­cial Assets and Enforcement of Security In­terest Act, 2002 (hereinafter referred to as the SARFAESI Act, 2002) as a Securitisation and Construction Company. The petitioner availed term loan from ICICI Bank, Bank of India, IDBI - SASF, Bank of Baroda, China Trust Bank, DCB, IFCI, J & K Bank, SICOM, Syndicate Bank, UCO Bank, PICUP and ING Vysya. The petitioner also availed working capital facilities from ICICI Bank, Bank of India, China Trust Bank, Federal Bank, Indian Overseas Bank, Punjab & Sind Bank, SICON, Syndicate Bank, Axis Bank, PICUP and ING Vysya. The lenders of the term loan are hold­ing the first charge over the assets of the Com­pany whereas the working capital bankers/lenders are holding the second charge. After 30th September, 2003 the Company started incurring losses which eroded the net worth of the Company. The company filed a refer­ence under Section 15(1) of the Sick Indus­trial Companies (Special Provisions) Act, 1985 (hereinafter referred to as the 1985 Act) on 6th April, 2004 being Case No.181 of 2004 before the Board for Industrial and Financial Reconstruction (hereinafter referred to as the BIFR). On 31st March, 2006 the ICICI Bank assigned its dues of Rs.85 crores to respon­dent No.4. A notice under Section 13(2) of the SARFAESI Act, 2002 was issued by re­spondent No.4 to the petitioner on 26th May, 2006 demanding payment of a sum of Rs.85.08 crores. The petitioner submitted a reply to the notice, which was rejected by re­spondent No.4, communication regarding which was issued to the petitioner vide letter dated 31st July, 2006. On 4th September, 2006, the BIFR rejected the reference (first reference) of the petitioner on the ground that the Company did not approach to the BIFR with clean hand and failed to avail the oppor­tunity by the BIFR to present its case. The petitioner filed an appeal against the order of BIFR before the Appellate Authority for Indus­trial and Financial Reconstruction, New Delhi (hereinafter referred to AAIFR). The Bank of India, Indian Overseas Bank and Develop­ment Credit Bank also assigned its dues to respondent No.4. The petitioner Company filed a second reference before the BIFR which was registered as Case No. 114 of 2006. By an order dated 30th May, 2007 the BIFR rejected the second reference as not main­tainable in view of first proviso to Section 15 of the 1985 Act as part of assets stood assigned to respondent No. 4 prior to regis­tration of the second reference. An appeal against the order dated 30th May, 2007 was filed which was allowed by the AAIFR on 29th November, 2007 remanding the matter to the BIFR for reconsideration. According to the AAIFR the first proviso to Section 15 of the 1985 Act could not apply unless and until the percentage of debt assigned was 75% or the assignee represents 75% of the secured creditors. A writ petition being Writ Petition No.9557 of 2007 was filed by respondent No.4 before the Delhi High Court challeng­ing the order of the AAIFR disputing the in­terpretation put by AAIFR on second proviso to Section 15 of the 1985 Act. An interim or­der was passed in the writ petition by the Delhi High Court directing that till the next date the BIFR shall not pass any order. At the instance of the petitioner, the respondent No.4 and other secured creditors agreed for liqui­dating the debt through intervention of the Court and also by third party investor. The petitioner filed an application before this Court under Sections 391-394 of the Com­panies Act for approving the scheme of com­promise. Under the orders of the Company Judge a meeting of secured creditors was con­vened to consider the scheme. An objection was raised by one of the secured creditors (ING Vysya) that this Court has no jurisdic­tion to consider any scheme, the matter be­ing pending with BIFR. By an order dated 18th January, 2010 the objections of the ING Vysya were rejected. After rejection of ob­jections, the scheme for confirmation was submitted before the Company Judge. Again objections were raised which was rejected by the learned Company Judge on 9th August, 2010. Special appeals under Chapter VIII, Rule 5 of the Rules of the Court being Spe­cial Appeal Nos.1395 of 2010 and 1397 of 2010 were filed by the ING Vysya challeng­ing the orders passed by the learned Com­pany Judge rejecting its objections. Both the special appeals have been allowed by the Division Bench of this Court on 8th Septem­ber, 2010 holding that Company Court has no jurisdiction to entertain the application which was filed under Sections 391-394 of the Companies Act, the matter being pend­ing before the BIFR. The writ petition filed by respondent No.4 before the Delhi High Court has been dismissed by judgment and order dated 22nd November, 2010 accepting the interpretation put by the AAIFR on sec­ond proviso to Section 15 of the 1995 Act. The writ petition by Shamken Spinners Lim­ited was filed in this Court on 24th October, 2009 praying for following reliefs :- "(a) to issue a writ, order or direction in the nature of certiorari quashing the impugned notice dated 26.05.2006 issued by the Re­spondent No.4 under Section 13(2) of the Securitisation and Reconstruction of Finan­cial Assets and Enforcement of Security In­terest Act (filed as Annexure-2 to this peti­tion); (b) to issue a writ order or direction in the nature of mandamus restraining the Respon­dents, its agents, representatives, employees or assignees from taking any of the measures under Section 13(4) of the Securitisation and Reconstruction of Financial Assets and En­forcement of Security Interest Act on the ba­sis of the impugned notice dated 26.05.2006 issued under Section 13(2) of the Securitization Act; (c) to issue a writ, order or direction in the nature of mandamus directing the Respon­dents not to take any coercive action against the Petitioner in pursuance of the impugned notice;" ;