AMITAVA LALA,J. - (1.) SINCE both the aforesaid writ petitions are connected and have been heard analogously, the same are being decided by this common judgement and order having binding effect upon both the writ petitions.
(2.) SO far as the first writ petition (Civil Misc. Writ Petition No. 2995 of 2005) is concerned, the petitioner herein, namely, M/s Mekaster Telematics Ltd. (hereinafter in short called as the 'company') has filed this writ petition for the purpose of quashing all the steps taken by the respective respondents in pursuance of the notice dated 15th April, 2004, by which the Managing Director and concerned Regional Director of the Pradeshiya Industrial and Investment Corporation of U.P. Ltd. (hereinafter in short called as 'PICUP'), being respondent nos. 1 and 2 herein, have already auctioned the immovable property situated at C-294, Sector 10, NOIDA, Uttar Pradesh being factory premises of the company. A further prayer has been made for quashing of any transfer of such property in favour of the respondent nos. 4 and 5 or any other person deriving title through them. In addition thereto, it is further prayed that the respondent no. 4 be directed to return the possession to the company and for quashing of the recovery proceedings against the company or its guarantor or Director under the Uttar Pradesh Public Monies (Recovery of Dues) Act, 1972 (hereinafter in short called as the 'Act, 1972'). 2-A. According to the company, it is an industrial company. For some reason or the other, the company faced financial difficulties and become sick within the meaning of the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter in short called as the 'SICA'). As a result whereof, the company was registered with the Board for Industrial and Financial Reconstruction (hereinafter in short called as the 'BIFR') under Section 15 of the SICA on 14th November, 2003. On 27th March, 2004 an auction was held by the respondent no. 3 (Sub-Divisional Magistrate, Dadri) for a consideration of Rs. 42 lacs. On 15th April, 2004 a letter was addressed to the company by the respondent no. 3 informing that the property was auctioned and they have received the aforesaid sum as maximum amount. On 19th April, 2004 the respondent nos. 1 and 2, being representatives of PICUP informed the District Magistrate, Ghaziabad to keep the recovery against the company in abeyance until permission is obtained from BIFR. On 26th April, 2004 the respondent nos. 1 and 2 filed an application before the BIFR with a request to allow the respondents to proceed with the recovery. The company informed the respondent no. 3 on 27th April, 2004 not to take any coercive action against the company since the matter is pending before the BIFR. PICUP has contended before this Court that they have received the entire sum due and payable by the company to the PICUP on account of loan but before that the possession had been handed over to the respondent nos. 4 and 5, being purchasers of the property in the auction purchase. Against this background, this writ petition was filed. In the second writ petition (Civil Misc. Writ Petition No. 20396 of 2006), the contention of the petitioner herein is that auction sale of the land and building occupied by the company can not be made by the PICUP. It is further contended on behalf of the petitioner that in the year 1999 such petitioner granted a loan of Rs. 75,00,000/- to the company in consideration of mortgage of aforesaid land and building by deposit of title deed. The memorandum of equitable mortgage was also executed. However, the loan remains unpaid. Charge of such petitioner over the said property was registered by the certificate dated 07th October, 1999 with the Registrar of the Companies. The loan agreement between the company and the PICUP was executed on the hypothecation agreements dated 30th September, 1995 and 22nd May, 1998 with regard to plant and machinery only but not with regard to land and building. Therefore, charge of the PICUP and repayment, if any, only related to movable properties and thus, the immovable properties of the borrower company could not have been sold as the same was mortgaged with the petitioner and the charge of the property was registered. However, the sale has been done in violation of Section 17 of the Registration Act, 1908. Sale of the property was done for a paltry sum. In any event, the sale of the property is void as the PICUP has only right with regard to plant and machinery.
(3.) THE respondent no. 5, auction purchaser, has taken the plea that auction sale has been confirmed in his favour and he has paid the price and is in possession of the property in dispute. A detailed order was passed by a Division Bench of this Court on 08th May, 2008 after hearing the parties by postponing the hearing and awaiting the result of the reference made by the Supreme Court on account of conflicting decisions on the point of interpretation of Section 22 of the SICA. This order has not been challenged by either of the parties. The matter has, thus, become final to the effect that till such time as the matter is not resolved or decided by the Supreme Court, the case would not be heard. This is a binding order between the parties and it is well settled by the Supreme Court that resjudicata applies at subsequent stages of the proceeding. Thus, the matter can not be heard unless the order dated 08th May, 2008 is recalled, reviewed or modified. There is no application for recalling or review of that order. Both the Hon'ble Judges, who passed the order, are available, hence, for recall or review the matter is to be placed before that very Bench under the Rules of the Court. So far as the procedure is concerned, it has been said that there is a complete procedure provided under the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter in short called as the 'UPZA and LR Act') and the Rules framed thereunder, namely, Uttar Pradesh Zamindari Abolition and Land Reforms Rules, 1952 (hereinafter in short called as the 'UPZA and LR Rules') to file the objections against the auction sale before the Commissioner of the Division, wherein the property is situated. Thereafter, aggrieved party has been given right to file revision. It has also been contended that Section 5 of the Limitation Act, 1963 applies to such proceedings. There is no averment in the writ petition why the normal statutory remedy will not be followed by the company. The company has suppressed such fact that there is an alternative statutory remedy. No explanation has been given by the company to come to this Court belatedly. There is no whisper in the writ petition as to what was he doing after the confirmation of sale. Approach to this Court has been made after a period of eight months after the confirmation of sale. The company has also not challenged the sale of plant and machinery for sum of Rs. 1.57 lacs, which has taken place on 28th March, 2003 i.e. about two years earlier to the filing of the writ petition. There is no factory or company, which could be rehabilitated and, therefore, SICA is not applicable. BIFR has ultimately rejected the application for registration under Section 22 of SICA. The company has filed an appeal wherein the arguments have been heard and the judgement is reserved. The company has not brought any stay order before this Court nor is there any stay order, to the best of knowledge of the respondent no. 5. He further contended that it has also been held by the Supreme Court in JT 1995 (5) SC 474 (U.P. Rashtriya Chini Mill Adhikari Parishad, Lucknow Vs. The State of U.P. And others) that when the matter in issue is pending before the higher Court, the High Court should not decide the question and the best course is to relegate the parties to a normal remedy which is provided under the statutes. Even after the finalization of this proceeding under the statute, there is a regular remedy for filing the suit, where all the questions disputed or otherwise can be gone into and an effective decision can be obtained. Hence, the writ petition/s is/are liable to be dismissed.;