- (1.) This writ petition dated 30.11.2012 is directed against an order dated 28.09.2012 passed by the Appellate Authority for Industrial & Financial Reconstruction, New Delhi (hereafter the 'AAIFR' for short) on MA No. 666 of 2010 filed by the third respondent herein. By the said order, the AAIFR vacated an order of status quo that was passed on 20.09.2010 while issuing notice in respect of Appeal No. 231 of 2010, preferred by the petitioners. In the appeal, the order dated 16.06.2010 passed by the Board for Industrial & Financial Reconstruction (hereafter 'BIFR') was under challenge. It was held by the BIFR as follows: 2.4 After taking into consideration the submissions made and material on record, the Bench stated that the reference of M/s Polar Industries Ltd. stands abated under the third proviso of section 15(1) of SICA as ARCIL has taken and completed action under section 13(4) of SARFAESI Act. The Miscellaneous Application No. 369 in Case No. 33 of 2007 M/s Polar Industries Ltd. is disposed of accordingly. The said order was carried in appeal by the petitioners mainly on two grounds. First, it was urged that the BIFR by its order dated 20.05.2010 had fixed 08.07.2010 as the next date of hearing and that the petitioners, despite being served with copy of MA No. 369 of 2010, were not aware that the same was likely to be heard on 16.06.2010; therefore, they went un-represented and the order is in complete breach of natural justice. Secondly, it was urged that the possession notice issued by the third respondent was a nullity since the Commercial Tax Officer, Noida had taken possession of the subject property and, therefore, pre-condition for taking possession under section 13(4) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereafter the 2002 Act) had not been fulfilled.
(2.) Mr. Mitra, learned advocate representing the petitioners contends that the AAIFR failed to consider that the jurisdictional fact for invoking the provisions of the 2002 Act had not been fulfilled and, therefore, measure taken under section 34(4) thereof was without jurisdiction. According to him, the third respondent does not represent the 3/4th value of the amount outstanding against the financial assistance to the first petitioner as required in terms of section 15(1) of the Sick Industrial Companies (Special Provisions) Act, 1985 and, thus, the proceedings initiated under the 2002 Act are without jurisdiction.
(3.) It is further submitted by him that since the other ground raised in the appeal was in respect of breach of natural justice, the AAIFR ought not to have vacated the interim order while keeping the appeal pending.;