S.B. Sinha, J. - (1.) Interpretation of the order dated 25th November, 1993 passed by S.K. Sen. J. in a writ application filed by the petitioners is the core question involved in this writ application. Before adverting to the said question, however, the fact of the matter may briefly be noticed. The petitioner no. 1 is an existing company within the meaning of the Companies Act, 1956 having been founded in the year 1932 by Professor S.K. Roy, K.C. Roy and H.K. Roy, the ancestors of petitioner no. 2 Tapan Roy and his brother Tapash Kumar Roy who are the Managing Director and Joint Managing Director respectively.
(2.) The said company has two factories; one situated in Calcutta and the other at Bangalore in the State of Karnataka. In the year 1989 the production in both the factories was suspended. The factories, however, were not closed and the workmen were also not retrenched. On or about 26.8.1989 in a general meeting the shareholders of the petitioner no. 1 resolved to refer the case of the petitioner no. 1 to B.I.F.R. in terms of Sec. 23 of the Sick Industrial Companies (Special Provision) Act, 1985 (hereinafter called and referred to for the sake of brevity as the said Act) as the said Company was declared a sick unit as the accumulated loss exceeded its net worth. Pursuant to the said resolution a reference was made before B.I.F.R. and the same was registered as the case no. 72 of 1990. On 13.3.91 B.I.F.R. passed an order asking the I.R.D.B.I. which had been appointed as operating agency to submit a report for the purpose of exploring the fensibility of inducting some other resourceful entrepreneurs, company/group, who may be willing to take over the company and to bring in the required interest and free funds, as there had been a dissension in the present management. The petitioners preferred an appeal against the said order and by an order dated 21.6.1991 the appellate authority directed the BIFR to re -examine the question of involving new entrepreneurs.
(3.) On 25.10.91 BIFR appointed ICICI as the Operating Agency in place of IRBI for preparing a scheme for the rehabilitation of the company and the petitioner no. 2 and his brother were asked to submit an audited balance sheet for the years ended 31.3.89, 31.3.90 and 31.3.91. They were also asked to deposit a sum of Rs. 50/ - lakhs which was not complied with. Again an appeal was preferred against the said order and by an order dated 22.3.1993 the appellate court gave certain directions followed by another order dated 28.5.93. In the meantime two applications were filed by other two applicants, namely, Bengal Lamp Shramik Panchayat and Bengal Lamp Workers Union and the matter came up before the appellate authority for hearing the said application along with the another application filed by the petitioner no. 1. The said appeal was eventually dismissed by an order dated 10.9.93 and the matter was referred back to the BIFR. By an order dated 5th October, 1993 BIFR, inter alia, observed that in view of the failure on the part of the promoters to deposit a sum of Rs. 150 lakhs, they were not in a position to bring in necessary funds for revival of the company and thus the operating agency was asked to undertake the techno -economic viability study of the company. A writ petition was filed by the petitioner as against the said order which was disposed of by this court by an order dated 25.11.93.;