INDUSTRIAL DEVELOPMENT BANK OF INDIA Vs. AUTOLITE INDIA LTD

JUDGEMENT

(1.) HEARD learned Counsel for the appellant on the point of admission of this appeal.

(2.) This appeal is against order dated 1.4.2002 passed by Debts Recovery Tribunal, Jaipur in O.A. No. 140/2001. By the impugned order, the application of the defendant company in the aforesaid O.A. to allow disposal of its assets in order to pay dues and debts has been disposed of by the Tribunal below. The Tribunal below has allowed the defendant company to sell the Glass Lens Project Equipment. According to the order, the sale is to be conducted in presence of IDBI (who moved the recovery application) and in presence of the Recovery Officer of the Tribunal. As per the order, the sale price so received as per arrangement arrived at will be deposited in a separate account to be opened in a nationalized Bank under the authority of the Recovery Officer of the concerned Tribunal. The Recovery Officer has been directed to make FDR of the amount so received after allowing retention of 20% of the sale price by the defendant company as working capital for further running of its business. Eighty per cent of the sale price was to be deposited in the FDR by the Recovery Officer so that when certificate would be issued by the Tribunal, the Recovery Officer could distribute the amount in accordance with the charge on the project equipment.

(3.) LEARNED Counsel for the appellant on the basis of the aforesaid fresh facts, which have come to the knowledge of the appellant, contends that the appeal be admitted and the matter be considered by this Appellate Tribunal in the light of the contents of the MoU. The application on which the impugned order has been passed is Annexure A-9 at page-124 of the Paper-Book. On perusal of the application, it is to be found that though it is mentioned in para-3 of the application that an MoU has been arrived at for about Rs. 2 crores and the date of MoU was to expire in March, 2002, yet there is nothing in the prayer clause of that application that the sale be made as per the MoU. It is also to be found from the records that a reply to that application was given by the appellant Bank in which it was mentioned that no copy of the MoU had been submitted to the Tribunal below. Since there is no mention of the contents of the MoU in the impugned order, it may reasonably be presumed that the copy of the MoU was not before the Tribunal when the impugned order was passed. The order is that the defendant company was permitted to sell Glass Lens Project Equipment subject to certain conditions (which have already been enumerated above). Nowhere in the impugned order it has been directed that the disbursement of the sale price would be as per the contents of the MoU but the order says that "the sale price so received as per arrangement arrived at by the seller and the buyer". The impugned order is dated 1.4.2002 and the stated MoU in the application of the defendant company was stated to be expiring in the month of March, 2002. If after the expiry of the MoU the impugned order was passed, it is not understandable as to how the MoU would be applicable in the matter. However, if MoU is to operate as per the understanding of the parties, the appellant Bank, if it is aggrieved with the contents of the MoU, should approach the Tribunal below with a review application for such modification or clarification of the impugned order as the appellant may like to request. The appellant has now facts with it, which were not in its knowledge, when the impugned order was passed. The impugned order was passed on 1.4.2002 and till the appellant received a copy of the MoU under the covering letter dated 25.4.2002, the appellant perhaps was not aggrieved with the order and only after the receipt of copy of the MoU it became aggrieved. Therefore, in my view, for any fresh facts, which have come to the knowledge of the appellant, the appellant should approach the Tribunal below under a review application. The provisions of the Act give a remedy to an aggrieved party for making a review application, especially, when the copy of the MoU is not on record of the Tribunal below and now the defendant company is relying on the contents of the MoU. The point at issue is whether the received sale price would be two crores or would only be Rs. 1.37 crore after deducting Rs. 63 lakhs which the sister concern owed to the intending purchaser. This would be a matter of clarification by the Tribunal below. Without that clarification there is no point in admitting this appeal. This Appellate Tribunal will not clarify the impugned order whether the contents of the MoU would determine the sale price of the aforesaid equipment.