PRASHANT INDIA LTD Vs. INDIAN RENEWAL ENERGY DEVELOPMENT AGENCY LTD

JUDGEMENT

(1.) RESPONDENT-Indian Renewal Energy Development Agency Ltd. (hereinafter referred to as 'the RESPONDENT herein') filed O.A. 16/2001 before the Debts Recovery Tribunal-I, Delhi (hereinafter referred to as 'the DRT') against the appellants (being defendants 1 to 6, hereinafter referred to as 'the Appellants-defendants') for the recovery of Rs. 3,66,59,941/- with interest and costs. The learned Presiding Officer of the DRT, by the impugned final order dated 5.2.2002, accordingly directed the appellants-defendants to pay the said amount jointly and severally with interest and costs. Aggrieved, the appellants-defendants have preferred the appeal, and this application under Section 21 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as 'the Act') seeking waiver of the deposit to be made in terms of the said Section 21 urging that the 1st appellant-defendant has been sick since 1998, and its financial resources are too weak to deposit 75% of the amount decreed, as required under Section 21 of the Act, that the O.A. against the other appellants could not have been filed against them in their capacity as guarantors as they are protected by Section 22 of the Sick Industrial Companies (Special Provisions) Act (hereinafter referred to as 'SICA') since the BIFR has not given any liberty to the respondent herein to proceed against them, and, therefore, the institution of the O.A. itself (before the DRT) is improper.

(2.) The respondent herein has filed a reply opposing the application urging that the BIFR, by its order dated 8.9.2000, has granted permission to all its creditors, including the respondent herein, to file/pursue the suits for the recovery of the dues, subject to the condition that no Court-receiver should be appointed in respect of the operational units and/or decrees, if any, granted shall not be executed without the prior approval of the BIFR. The respondent herein has farther urged that no protection of Section 22 of SICA is available to the appellants 2 to 6, and, therefore, the contention that the institution of the O.A. itself is improper qua appellants 2 to 6 is frivolous.

(3.) THE learned Counsel for the appellants-defendants points out that by order dated 8.9.2000 the BIFR had permitted the filing/pursuing of the suits for the recovery of the dues, and that the O.A. 16/2001 was filed on 12.1.2001. He also points out that the BIFR had also directed that no court-receiver should be appointed, the decrees, if granted, shall not be executed except with the prior approval of the BIFR. He also points out that, as is seen from the paragraph 3 of the order of the BIFR, permission was sought for to file suit for the recovery against the company only (1st appellant-defendant only). He also points out that the permission was granted by the BIFR only with regard to the 1st defendant-company. He contends that in view of the provisions contained in Section 22 of SICA, the bar of instituting or continuing a suit is in respect of guarantors also, and unless and otherwise the respondent herein had obtained the specific leave of the BIFR to proceed against the guarantors, namely., the appellants-defendants 2 to 6, the institution of the O.A. itself before the DRT is not proper.