- (1.) This appeal is directed against a judgment and/or order dated 17th August, 2010 passed by the Hon'ble Single Judge in W.P. No. 63 of 2010, G.A. No. 786 of 2010, G.A. No. 372 of 2010, W.P. No. 4154 (W) of 2010 wherein His Lordship (Writ Court) was pleased to pass the following order: Having regard to the above observations, it appears that it has been categorically held by the Court that the Bank was not entitled to get any benefit from any of the terms of the terms of settlement. It has also been specifically observed by the Court that the learned Appellate Tribunal committed an illegality by directing issuance of recovery certificate in terms of clause 7(2) of the terms of Settlement dated 30th January, 2004, in favour of ARCIL. In such circumstances as stated above, I am of the view that no effect can be given in respect of the two impugned notices, dated 17th March, 2009 and 12th January, 2010, till final disposal of the proceeding pending before the Debt Recovery Tribunal-I, Kolkata. Consequently, no effect shall also be given in respect of the notice dated 19th February, 2010, issued by the respondent ARCIL, till final disposal of O.A. No. 186 of 1995. The writ petition stands disposed of accordingly. At the time of disposing of the said writ petition the Hon'ble Single Judge has relied on a judgment and order delivered in a Civil Revision case, which was instituted by Kanoria Jute & Industries Ltd. against the Bank of India, Asset Reconstruction Company India Limited and others.
(2.) The observations made by the Hon'ble Single Judge of this Court in the Civil Revision case, being C.O. No. 2161 of 2010, are reproduced hereunder:- Thus this Court holds that the decree which was passed by the tribunal on the basis of such compromise petition is illegal and such decree cannot be retained on record. The conclusion of the Appellate Tribunal upto this, is accepted by this Court, for the reasons as aforesaid, without however approving the finding on which such conclusion was drawn by the Appellate Tribunal. This Court also cannot accept the submission of Mr. Mitra, learned Senior Counsel, who submitted that the default clause as contained in clause 2 of the terms of compromise was attracted on the failure of the petitioner herein to deposit the agreed amount within the stipulated period as per the said compromise petition. This Court holds that the opposite party Nos. 1 and 2 cannot take both hot and cold at the same time. Once they take a stand that the compromise was practically abandoned and/or frustrated due to passage of time and/or change of situation making the terms of compromise unenforceable and/or incapable of implementation, they cannot claim any benefit out of any of the terms of compromise even if it was favourable to them. As such this Court holds that the bank is not entitled to get any benefit from any of the terms of the said terms of settlement. This Court thus holds that while setting aside the order passed by the learned Presiding Officer of the Debt Recovery Tribunal-I Kolkata on 14th August, 2009, the learned Appellate Tribunal committed an illegality by directing issuance of recovery certificate in terms of Clause 7(2) of the terms of settlement dated 30th January, 2004 in favour of the second appellant, namely Asset Reconstruction Company (India) Ltd. Accordingly that part of the direction passed by the Appellate Tribunal is set aside in view of the discussion as made hereinabove. The Debts Recovery Tribunal-I Kolkata is now required to consider the application being O.A. No. 186 of 1995 under section 19 of the said Act on its own merit in accordance with law. Before parting with, this Court also wants to make it clear that since the decree is set aside the opposite party No. 2 cannot claim any benefit of the alleged assignment of the said decree. The said opposite party No. 2 thus cannot be regarded as an assignee of the said compromise decree and as such the said company cannot be impleaded as assignee of the decree under Order 22 Rule 10 of the Civil Procedure Code in the said proceeding. Maintainability of the Appeal: Since the bank was one of the appellants before the learned Appellate Tribunal, this Court holds that the said appeal at the instance of the bank cannot be held to be not maintainable even assuming that the appellant No. 2 namely opposite party No. 2 herein had no locus to maintain the said appeal. Of course, this Court cannot hold that the said opposite party No. 2 had no locus to maintain the said appeal at the material time as when the appeal was filed, the decree passed by the Tribunal was in operation and as such the assignee of the decree, whose interest was adversely affected by the decree passed by the learned Tribunal, had the right to maintain the said appeal before the Appellate Tribunal with the leave of the Appellate Tribunal and grant of such leave can be presumed as the said appellant was allowed to proceed with the same along with the Bank. As such this Court holds that the appeal at the instance of both the appellants was maintainable.
(3.) The Hon'ble Single Judge disposed of the said writ petitions and the applications relying on the observation made by the High Court in revisional application holding that the ARCIL cannot be accepted as an assignee in terms of the said compromise decree and further cannot impleaded in the petition as an assignee of the decree under Order 22 Rule 10 of the Code of Civil Procedure. The Court also held that decree passed by the Tribunal on the basis of the compromise petition is illegal. The Court also directed the Tribunal to consider the pending application being O.A. No. 186 of 1995 on merits. Relying on such observation the Hon'ble Single Judge directed that no effect should be given to the notices dated 17th March, 2009 and 12th January, 2010 till O.A. No. 186 of 1995 is finally disposed of by the Tribunal. Consequently directed that no effect shall be given in respect of notice dated 19th February, 2010, issued by ARCIL.;