D.A. Mehta, J.
1. This petition has been preferred by one Kamdar Ladat Samiti of Nanikram Shobraj Mills Limited and its associated units through its President one Shri Premshankar Tiwari under Article 226 of the Constitution of India challenging the orders made by the Board of Industrial and Financial Reconstruction (hereinafter referred to as the 'Board') on 31/12/1997 in Case No. 24 of 1996 under Section 20(1) of the Sick Industrial Companies (Special Provisions) Act,1985, (hereinafter referred to as 'the Act'), and confirmed by the Appellate Authority vide order dated 27/7/1998. The petitioner has prayed for the following reliefs :
'30. In the premises aforesaid, the petitioner prays as under :
(A) Your Lordships be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction in the like nature quashing and setting aside the order of the BIFR dated December 31,1997, in Reference Application No.24/96, under section 20(1) of the Sick Industrial Companies (Special Provisions) Act, 1985, at Annexure F and order dated 21.7.98 passed by the Appellate Authority at Annexure G;
(B) Pending hearing and final disposal of this petition, Your Lordships be pleased to stay and suspend the operation and implementation of the order of the BIFR dated December 31,1997, in Reference Application No.24/96, under section 20(1) of the Sick Industrial Companies (Special Provisions) Act,1985, at Annexure F, and the order dated 21.7.98 passed by the Appellate Authority at Annexure G;
(C) Ex parte ad interim relief in terms of prayer (B) may kindly be granted;
(D) Such other and further reliefs as may be deemed just and proper in the facts of the case may be granted.'
2. It is averred in the petition that Nanikram Shobraj Mills Ltd., (Mill Company) and its associate units, Modern Silk Mills, Crown Silk Mills and J.K. Sovirana Textile Mills are situated at Saraspur and Sobhraj Park, Ahmedabad; the units at Saraspur are carrying on weaving process while units located at Sobhraj Park are processing cloth. It is further stated that since 1992 the production and finance of the Mill Company started deteriorating and in January, 1996 the Management closed down all operations of the Mill Company. Pursuant to such closure the Mill Company filed a Reference before BIFR under Section 15(1) of the Act and the said Reference came to be numbered as Case No.24/96. On 31/12/1997 the Bench of BIFR passed the order under Section 20 of the Act holding that it was just and equitable and in public interest if the Mill Company was wound up.
3. The petitioner filed an appeal bearing Appeal No. 68/98 before the Appellate Authority and the Appellate Authority for the reasons stated in its order dated 27/7/1998 confirmed the order of Board.
4. The basic case of the petitioner is that the orders passed by the Board and the Appellate Authority are bad in law as neither the Board nor the operating agency viz. IDBI examined the merits of the proposal moved by the petitioner for revival of the Mill Company. In support of the aforesaid contention the petitioner has referred to and relied upon its applications made for being joined as party in the proceedings before BIFR; its applications to the operating agency for obtaining certain information pertaining to Mill Company so as to frame suitable proposal; submission of outline of proposal on 3/9/1996 and detailed scheme for revival forwarded vide letter dated 27/9/1996. According to the petitioner the Board passed an order on 1/10/1996 recording that the Scheme did not give sufficient particulars and hence there was no acceptable proposal which could provide revival of the Mill Company within a reasonable time frame, and thus recording a prima facie opinion that it was not possible for the Mill Company to turn its net worth positive within a reasonable time frame, and directing issuance of show cause notice inviting objections before 31/12/1996. The petitioner also refers to correspondence commencing from 7/10/1996 and ending on 26/12/1996 in support of its basic contention.
5. Mr. Mihir Joshi, learned Advocate appearing on behalf of the petitioner submitted that :
A.[i] The Scheme presented to IDBI as operating agency in proceedings before the Board has not been considered as required under law;
[ii] The Board has even otherwise erred in law by not considering relevant factors and the order is contrary to the Scheme and object of the Act
B.[i] The Court should mould relief in light of subsequent developments; and alternatively,
[ii] even if the order is found to be valid in law, in light of the changed fact situation pass an appropriate order to do complete justice between the parties.
6. Elaborating on the submissions made as aforesaid, it was submitted by Mr. Joshi that it was not even a case of inadequate consideration but a case of non consideration; the Board being final fact finding body ought to have considered the Scheme for revival and given reasons as to why the said Scheme was not acceptable, while in fact, no reasons have been assigned. That the Appellate Authority had also not taken care to examine the Scheme on merits and the reasons assigned by the Appellate Authority were based on irrelevant factors. That both the Board and Appellate Authority had failed to consider the Scheme of the Act with a special reference to Sections 18 & 19 of the Act.
6.1 It was further submitted that it was well established that subsequent facts have to be taken into consideration for moulding relief and the approach of the Court should be to do substantial justice. That subsequent events had supervened and in light of the modified Scheme as on 22/7/1999 submitted whose technical viability was examined by GITCO, the Scheme had been approved by IDBI. Therefore, it was contended that the fact situation as on date of hearing should form basis for determining the relief that the petitioner was entitled to. Section 32 of the Act provided for overriding effect of the provisions of the Act as well as any rules or Scheme made under the Act and hence, in light of the said provision the Scheme must be examined by the Court either on its own or order the operating agency to examine the Scheme; thus in effect the Court must substitute itself in place of the Board in the circumstances.
6.2. In support of various submissions Mr. Joshi has placed reliance on :
[i] (1994)2 CLJ 391 SC. Navnit R. Kamani & Ors. v. R. R. Kamani & Ors.
[ii] AIR 1984 SC 1182 Commissioner of Income-tax, Bombay & Ors. v. Mahindra and Mahindra Ltd.
[iii] (1999)3 CLJ 25 (Bom) Board for Industrial and Financial Reconstruction v. B. K. Steel Products Ltd.
[iv] AIR 1975 SC 1409. Rabindra Kumar Ghosel v. The State of West Bengal.
[v] 1986(2) GLR 1161 Atam Sugnomal Pohani v. Gujarat Electricity Board.
7. Mr. R. M. Desai, learned Advocate appearing on behalf of respondent No.3 submitted that first of all role of IDBI before the Board and dehors that had to be appreciated : That before the Board it was appointed as operating agency and functioned as such under the directions of the Board, while otherwise it functioned as a secured creditor of the Mill Company.
7.1. That the proposal moved before the Board was not acceptable as the proposors of the Scheme were not bringing in any funds; that the source of finance as required to be shown under Section 18 of the Act was by way of sale of property which was security of the secured creditor; that the Scheme did not propose to revive the Mill Company, but the revival was only of the weaving unit. Therefore, it was submitted that the secured creditors were not ready to make any sacrifice there being no viable scheme by any sponsor.
7.2 It was submitted that reference to subsequent events and changed circumstances had to be appreciated in the context of the fact that the same were in Company Petition No.2 of 1998 after receipt of the Board opinion, in pursuance of which the petition had been admitted and provisional liquidator was appointed by this Court by an order made on 23/7/1999. That in the circumstances, the order made by the Board and confirmed by the Appellate Authority was proper and the petition was required to be rejected. It was further submitted that, in the alternative, even if the Court found that there was some deficiency in the order made by the Board and the Appellate Authority considering the subsequent events there was no case for remanding the matter to the Board, and that the proposal which was not accepted by the operating agency was not the same which was accepted by secured creditor under directions of the Court. That under directions of the Court in Company Petition No. 2 of 1998 and allied matters some of the assets of the Mill Company had already been sold and the petitioner had even been paid Rs.50 lacs out of such sale proceeds as ordered by the Court. Therefore, under the circumstances, the petition was required to be rejected.
7.3. He placed reliance on :
[i] (2000)99 Company Cases 461 Gujarat Trade Union Manch Vs.Gujarat State Textile Corporation.
[ii] Unreported decision in Special Civil Application No. 6837 of 1996 - Gujarat Trade Union Manch v. Gujarat State Textile Corporation.
8. Mr. D. S. Vasavada, learned Advocate appearing on behalf of Ahmedabad Silk Employees' Union who was a party before the Board, submitted that order dated 31/12/1997 had attained finality having been confirmed by the Appellate Authority, Company Petition on the basis of Board's opinion having been admitted and therefore, at this stage, it is not necessary to go into the merits of the correctness or otherwise of the order of the Board. It was further submitted that the Board was justified in not dealing with the Scheme presented by the petitioner because till 14/12/1997 the petitioner was at best an only association of persons; it was not even a registered union nor was it a registered Cooperative Society; that the petitioner resolved to form a Cooperative Society only on 14/12/1997 as admitted in the petition.
8.1 It was further submitted that even otherwise, on merits the petitioner could have no grievance as the proposed Scheme had been dealt with by the Appellate Authority as could be seen from paragraph No.14 onwards of the appellate order; that the said appellate order showed complete application of mind and in the circumstances there was no error which could be challenged by way of writ petition.
8.2 It was urged that the writ petition was not maintainable as the petitioner did not show when the Cooperative Society was actually formed and even if any such Cooperative Society was formed and registered whether there was any authorization to file petition either under byelaws or by a resolution approved by the General Body; that the petitioner also did not disclose as to whether the petitioner was an authorised individual or an office bearer.
8.3 In support of the aforesaid submission, reliance was placed on :
[i] 89 Company Cases 600 (Madras). J. M. Malhotra v. Union of India.
[ii] 1997(3) CLJ 221 SC. V.R.Ramaraju v. Union of India and others.
[iii] 2004(I) LLJ 322. Dindigul Spinners Association & Ors. v. State of Tamil Nadu & Ors.
[iv] AIR 2002 SC 834. State Financial Corporation & Another v. M/s. Jagadamba Oil Mills.
[v] Unreported decision of this Court in case of Shree Visnagar Taluka Audhyogik Sahakari Mandali v. District Registrar (Industries) & Others in Special Civil Application No. 820 of 2003 decided on 31/1/2003 confirmed in Letters Patent Appeal No.134 of 2003 dated 10/2/2003.
9. Mr. R. D. Dave, learned Advocate appearing on behalf of General Workers Union submitted that the orders of the Board and the Appellate Authority cannot be said to be erroneous or suffering from any jurisdictional error. That the proposed scheme was contrary to interest of the workers as a whole as the petitioner was only representing a small group of workmen; that the Cooperative Society had been registered subsequently ; i.e. subsequent to the filing of the petition. That merely because the Scheme had not been considered to the satisfaction of the petitioner it was not permissible in these proceedings for the Court to reweigh the evidence to decide whether the scheme was beneficial or not. It was contended that considering the provisions of Sections 17 & 18 of the Act no public interest was involved as the proposal was only for the revival of a part of the unit and the Scheme did not provide for either change of management or measures to be taken for financial reconstruction of the Company.
9.1 That it was permissible to file a Scheme under Section 391 of the Companies Act, 1956 and the present proposed Scheme did not involve shareholders or the secured creditors who were otherwise vitally affected. It was therefore urged that in light of the Apex Court decision in the case of Sadhana Lodh v. National Insurance Co., AIR 2003 SC 1561, the petition be rejected.
10. Mr. Joshi in rejoinder submitted that the contentions raised by Mr. Vasavada and Mr. Dave were more technical in nature and should not be permitted to prevail over substantial justice being done. That in Company Petition this Court had only issued notice and there was no order and no adjudication in relation to the Scheme. That the issue regarding locus of the petitioner was concluded by order dated 13/12/2002 made by this Court in Company Application No.350 of 2001. That it was settled legal position that a petition under Article 226 of the Constitution of India cannot be filed where an alternative remedy is available but after exhaustion of such statutory alternative remedy it was permissible to file a petition. Lastly it was submitted that public interest as envisaged under the provisions of the Act did not necessarily mean that there should be a positive turn round of the entire company and that net worth must exceed accumulated losses.
11. It is necessary to briefly recapitulate settled legal position. Article 226 of the Constitution lays down power of High Court to issue writs in certain circumstances. It provides for the power of judicial review, but such power of judicial review is not directed against the decision but is confined to the decision making process. A judicial review is not an appeal from a decision but a review of the manner in which the decision is made. The Court sits in judgment only on the correctness of the decision itself. It is by now well settled that jurisdiction under Article 226 is an original jurisdiction but that it is not an ordinary original jurisdiction but an extraordinary original jurisdiction. Article 226 is couched in the widest possible terms and in absence of clear bar to its jurisdiction, the power under the Article can be exercised when there is any act which is against any provision of law or violative of the constitutional provisions and when recourse cannot be had to the provisions of a statute for appropriate relief. The powers under the Article are discretionary and there are no limits upon that discretion. Therefore, the discretion has to be exercised subject to certain self imposed limitations and not arbitrarily. The High Court does not sit as an appellate Court : interference with pure findings of fact and appreciation of evidence is not permissible. Reappreciation of evidence cannot be undertaken. Even if on same set of facts, circumstances and evidence on record a different view may be possible that by itself is not enough to permit the High Court to intervene. A mere wrong decision does not clothe the High Court with jurisdiction, unless it is shown that the Tribunal has reached a decision without any evidence in support of same, or that it has considered evidence which is partly relevant and partly irrelevant. In short, arrived at a decision no reasonable person would arrive at. The High Court confines itself to the question of legality and is concerned only with whether :
[i] decision making authority exceeded its power;
[ii] committed an error of law;
[iii] committed a breach of the rules of natural justice;
[iv] reached an unreasonable decision;
[v] abused its powers.
The High Court must while examining the decision making process ensure that the same is not capricious; irrational; discriminatory or violative of Constitutional or statutory provisions or malafide. That the authority has genuinely addressed itself to the matter before it. But the High Court is at the same time required to balance the competing interests. The High Court is not required to exercise its powers in relation to disputes regarding a purely commercial transaction or decide questions which are academic in nature.
12. Where the person aggrieved has availed of a statutory remedy such as appeal or revision, the original order merges in the order of the superior authority, so that thereafter his remedy, if any, lies only against the decision of the appellate authority and not the original order.
13. When a number of individuals are affected by an official act, they can, ordinarily, bring a legal proceeding to challenge that only if all such persons join in the proceedings by name, except where the law confers upon them a legal personality as a collective body. An unincorporated association, which has no legal personality, cannot sue or be sued in its own name. Only the members of such society jointly can being a legal proceedings.
14. It is an accepted position that proceedings before the Board and the Appellate Authority are quasi judicial proceedings. Therefore, the grievance of the petitioner that it was not impleaded as necessary party in the proceedings cannot be countenanced, as in the facts and circumstances of the case, the petitioner was admittedly an unincorporated association of persons having no legal personality. As the facts demonstrate, at the earliest, only on 14/12/1997 the workers resolved to form a Cooperative Society. The Appellate Authority therefore, not only entertained the appeal but heard them on merits. Hence, the grievance made by the petitioner that the order made by the Board on 31/12/1997 suffers from vice of absence of reasons is not true. Despite the fact that the petitioner was a body of individuals, if it could be described to be so, the order of the Board goes to show that whatever proposal was received by the Board and/or operating agency had been looked into by them. For this purpose, it is necessary to refer to the orders of 28/6/1996 as well as 1/10/1996 made by the Board because the entire decision making process is reflected through earlier orders made by the Board culminating in recording of the final opinion on 31/12/1997. Therefore, to say that the order of 31/12/1997 made by the Board does not assign any reasons and hence is invalid in law is an incorrect statement in the context.
15. However, what is more material is that the said order has merged in the order of the Appellate Authority and the Appellate Authority has not only registered the appeal filed by the petitioner, but entertained the same and decided the same on merits. May be ultimate decision is not to the satisfaction of the petitioner but that by itself is not sufficient to permit this Court to exercise the extraordinary and discretionary power conferred under Article 226 of the Constitution. It does not bear repetition that a mere wrong decision by itself does not permit the Court to vest itself with jurisdiction unless it is shown that the Appellate Authority arrived at the decision without any evidence in support of the same. None of the aforesaid factors exist in the present case so as to warrant any interference. It is also not a case where any jurisdictional error has occurred; viz. where jurisdiction has been exercised in absence of jurisdiction, or where the Appellate Authority has failed to exercise jurisdiction vested in it; nor is there any error apparent on record. Though Mr. Joshi, during course of hearing vehemently contended that provisions of Section 18 of the Act have not been considered in proper perspective, it is not possible to state that any irrelevant factor has gone into the decision making process. The object of the Act is admittedly the speedy determination by a Board of Experts of the preventive, ameliorative, remedial and other measures which need to be taken with respect to sick and potentially sick companies and the expeditious enforcement of the measures so determined. The Act is brought on statute book in the public interest to make special provisions to secure timely detection of sick and potentially sick industrial companies owing industrial undertakings. 'Needless to say, the decision of the Board is that of an expert body. Ordinarily, a decision of such a body is not interfered with unless it is palpably wrong or is such that no reasonable man of ordinary prudence would reach such a decision'. These observations made by the Division Bench of this Court in the case of Gujarat Trade Union Manch (supra) would apply with equal rigor to the decision of the Appellate Authority constituted under the Act. Once the said authority has taken the view that there is no alternative but to wind-up the unit considering the losses incurred by the company it is not possible to hold that such a decision is required to be interfered with.
16. In the case of J. M. Malhotra (supra), Madras High Court laid down as follows :
'Therefore, it appears to us that even though the opinion submitted by the Board forms the basis for ordering winding up of the sick industrial company by the High Court, it is nevertheless open to the High Court to go into the correctness of the opinion so submitted by the Board and decide as to whether it should proceed and cause to proceed with the winding up of the sick industrial company, in accordance with the provisions of the Companies Act. This is clear by the use of the words, 'and may proceed and cause to proceed' in sub-section (2) of section 20 of the Act. Therefore, it is not possible to hold that even though the opinion submitted by the Board forms the basis for directing the winding up of the sick industrial company by the High Court, the High Court is precluded from examining the correctness of such opinion. Therefore, it cannot be held that it is obligatory on the High Court to order winding up of the sick industrial company once it receives an opinion from the Board in this regard without examining the correctness of such opinion, on hearing the concerned parties.'
This decision has been confirmed by the Supreme Court in the case of V. R. Ramaraju (supra) in the following words :
'It is obvious that sub-section (2) has to be construed to mean that the High Court in deciding the question of winding up of the company has to take into account the opinion of the Board forwarded to it under sub-section(1) and is not to abdicate its own function of determining the question of winding up. So read , sub-section (2) does not suffer from any infirmity. This in substance is the view taken by the High Court in the impugned order.'
17. Thus, the legal position is that an order made by the Board and/or confirmed by the Appellate Authority under the provisions of the Act does not operate as a binding order in so far as the Court taking-up the Company matters is concerned. Even after receipt of the opinion from the Board and/or Appellate Authority the Company Court is entitled to look into the merits of such an order, and while appreciating the merits, the position in law is well settled, the Court is empowered to exercise all the powers available to it under the Companies Act,1956, including those available to the Court under Section 391 read with Section 394 of the Companies Act,1956.
18. Company Petition No.2 of 1998 pertains to proceedings subsequent to receipt of the Board opinion dated 31/12/1997 recommending winding up of the Mill Company. Company Application No. 292 of 1998 in the said petition is an application by the Workers Cooperative Society objecting to the winding up of the Company on the basis of the Board's opinion. As can be seen from order dated 23/7/1999 made in Company Petition No.2 of 1998 with Company Application No. 292 of 1998 on the basis of the aforesaid decision of V. R. Ramaraju v. Union of India (supra) this Court has taken cognizance of the fact that grievance ventilated in Company Application No. 292 of 1998 by the Workers Cooperative impugning the correctness and legality of the Board opinion can well be examined at a later stage when the Court is considering the issue whether the Company should or should not be wound up on the basis of the Board opinion. It was in the context of the aforesaid finding recorded by the Company Court that learned Advocate for the petitioner sought to withdraw this petition along with Company Application No. 292 of 1998 with a liberty to raise all available contentions assailing the correctness of the Board opinion including those raised in the petition by way of objection at an appropriate stage. It is an admitted position that by order dated 12/9/2000 made in Company Petition No.2 of 1998 with Company Application No. 292 of 1998 and allied matters the Court permitted revival of this petition as well as Company Application No. 292 of 1998.
19. In the circumstances, it is also necessary to consider what the petitioner has prayed for in Company Application No. 292 of 1998, wherein the petitioner is the applicant. The prayers are :-
'(A) Your Lordship may be pleased not to order winding up of Nanikram Shobraj Mills Limited on the basis of the order of the BIFR dated December 31,1997, in Reference Application No. 24/96, under Section 20(1) of the Sick Industrial Companies (Special Provisions) Act, 1985 (at Annexure 'F').
(B) Your Lordship may be pleased to stay further proceedings pursuant to the order of the BIFR dated December 31,1997, in Reference Application No.24/96, under Section 20(1) of the Sick Industrial Companies (Special Provisions) Act,1985 (at Annexure 'F'),
(C) Your Lordships may be pleased to consider and approve the scheme of revival as proposed by the applicant in respect of Nanikram Shobraj Mills Limited (at Annexure 'B'), and/or, be pleased to direct the erstwhile Operating Agency to consider the same and place its analysis and report before this Honourable Court for further directions; (B) pending the hearing and final disposal of the application, this Honourable Court may be pleased to :
(i) stay further proceedings pursuance to the order of the BIFR dated December 31,1997. In Reference Application No.24/96, under Section 20(1) of the Sick Industrial Companies (Special Provisions) Act, 1985 (at Annexure 'F'),
(ii) consider and approve the scheme of revival as proposed by the applicant in respect of Nanikram Shobraj Mills Limited (at Annexure 'B'), and/or, be pleased to direct the erstwhile Operating Agency to consider the same and place its analysis and report before this Honourable Court for further directions;
(C) An ex-parte ad-interim relief in terms of prayer (B) may kindly be granted.
(D) And to pass such other and further orders as may be deemed just and proper;'
20. In the said Company Application No.292 of 1998 the Court on 9/9/1998 made the following order while issuing notice :
' xxx xxx It is clarified that pendency of this application shall not come in the way of the parties sitting across the table and negotiating any modifications to the scheme proposed by the applicant herein'.
21. On 23/7/1999 the Court while admitting Company Petition No. 2 of 1998 issued the following directions :
'A Company Petitions Nos. 2 of 1998 and 65 of 1998 are admitted. Necessary advertisements shall issue in the Indian Express, English daily and Jansatta, Gujarati daily at the cost of the I.D.B.I., who acted as operating agency before the B.I.F.R., in such a manner that statutory period shall be allowed to lapse before the date of final hearing which shall be 9/9/1999. Publication in the Official Gazette is for the present dispensed with. It is made clear that the cost of advertisements and other incidental expenses shall be borne by the secured creditors in equal proportion.
The Official Liquidator attached to this Court is hereby appointed as Provisional Liquidator, who will take charge of the assets of the company with all powers under the Act.
B The management of the company is directed to hand over the charge of all the assets of the company to the Provisional Liquidator within three days from the date of this order, failing which it will be open to the Official Liquidator to take charge of such assets in accordance with law. The management of the company shall cooperate and comply with the directions that may be given by the provisional Liquidator in consonance with his duties under the Act and the directions given in this order. To reiterate, in case possession and charge of the assets is not given by the management to the provisional Liquidator, the provisional Liquidator shall take possession of the assets and property of the company by entering into the premises and breaking open the locks in the presence of the Panchas and after due notice in this behalf to the management.
C The provisional Liquidator shall without delay ensure the security of the assets of the company by appointing necessary personnel. The expenses of the security staff would be borne by the secured creditors. The provisional Liquidator shall be at liberty to incur the necessary expenses from the funds available with him or made available by the I.D.B.I. in the first instance.
D The provisional Liquidator shall proceed to make inventory and prepare a report of the assets of the company including its plant and machinery, land and building, goods finished or semi-finished, raw materials and other movables and shall also carry out inventory of the books, documents and all other papers of the company lying in the premises. This inventory shall be carried out within 15 days after giving notice in that respect to the parties hereto.
E The provisional Liquidator shall appoint a Government approved Valuer for preparing a valuation report in respect of the assets of the company. The Valuer shall be appointed in consultation with the secured creditors and the workers representative. The Valuer shall submit such report to the Official Liquidator within 21 days from the date of appointment of such Valuer. A copy of his report shall be submitted to this Court and if any party desires to have a copy thereof, it will be open to such party to apply before the Court.
F On receiving the report, a Sale Committee consisting of provisional Liquidator as the convener and one member each representing secured creditors and one member representing the workers will fix the offset price and after obtaining necessary orders from the Court in that behalf, will proceed to invite public offers for the sale of such assets of the company as the Court directs, but excluding the assets proposed to be utilised in the revival scheme of the workers cooperative, which will also be placed for consideration before the Court, with a specific rider that the offers would be finalised only after obtaining necessary orders from the Court.
G The offers received from the public for purchase of the assets of the company and the objections to the winding up of the company, if received, shall be placed before the court on 9/9/1999 for further hearing and directions.
5 In view of what is stated above, the Special Civil Application No.10307 of 1998 and Company Application No. 292 of 1998 are hereby permitted to be withdrawn with liberty to file objections as prayed for. It will also be open to the workers cooperative to submit a revised scheme along with its objections taking into account the changed circumstances. This will be placed for consideration on merits before the Court.
All other matters shall be placed for hearing on 9/9/1999 as aforesaid.'
22. In pursuance of the aforesaid direction on 22/2/2000 the Court made the following order in Company Petition No.2 of 1998 :
'I have heard the learned advocates. Learned Advocate Shri R. M. Desai appearing for IDBI, which has been appointed as an operating agency by the BIFR, has submitted that, as per the order passed by this court dated 23.7.99, the sale committee consisting of the provisional liquidator as a convener of the committee had to convene the meeting so that some of the properties which might not be required by the workers' co-operative can be advertised so that the committee can receive offers for disposal of the said assets. It has been submitted by the Official Liquidator that till today, he has not received a list of assets which are required by the workers' co-operative for the purpose of running the mill. In the circumstances, it was not possible for the O.L. to convene the meeting of the sale committee. Learned Advocate Shri Mihir Joshi appearing for the workers' co-operative has submitted that he has received valuer's report and on or before 28.2.2000 he shall furnish a list of assets which might be required by the workers' co-operative for the purpose of running the unit if the scheme which is to be proposed by the workers' co-operative is ultimately sanctioned. It has been further submitted by him that the workers' co-operative shall be in the position to submit the proposed scheme on or before 10.3.2000.
It is directed that in the meantime the sale committee should convene its meeting and do the needful as directed by this court in the order passed on 23.7.99. S.O. to 16.3.2000'
23. The petitioner moved Company Application No. 113 of 2000 seeking extension of time envisaged in the aforesaid order dated 22/2/2000 to submit its proposed scheme by a period of 21 days, and also sought direction that further list of assets required for the proposed scheme as per the technical appraisal report be permitted to be given to the Official Liquidator. On 15/11/2000, after hearing the learned Counsel for the parties, the Court made the following order :
'After having heard the learned Counsel for the parties and without entering into the merits of the order passed by the BIFR and AAIFR, if the following directions are given, the same will meet the ends of justice.
(1) IDBI, without prejudice to its rights and contentions, shall examine the viability of the scheme presented by the petitioner independently without in any manner being influenced by any adverse opinion, if any, given by it or the orders passed by BIFR and AAIFR.
(2) The petitioner shall supply the copy of the proposed scheme presented before the authorities earlier with modification, if any, to the IDBI within two days from today. The IDBI shall submit the report before this Court after considering the same by 4.12.2000. S.O. to 4.12.2000'.
24. In light of the aforesaid orders made by the Court in Company Petition No. 2 of 1998 and allied matters the Official Liquidator attached to this Court presented his report i.e. OLR No.99 of 1999 and in light of offer received from highest bidder Company Application No.350 of 2001 came to be moved by one of the secured creditors viz. IDBI. The controversy in Company Application No. 350 of 2001 is about accepting the offer of Mr. Ramjibhai K. Patel for purchasing the land of the Mill Company. Thus while dealing with the aforesaid application the Court took into consideration the background facts including the present petition filed by the association of workers. Therefore, the observation made in paragraph 3.3 in order dated 13/2/2002 will have to be appreciated in the aforesaid backdrop of facts and circumstances which have come on record, and the locus of the petitioner has to be considered in the context of all the orders made since inception in Company Petition No. 2 of 1998 with Company Application No. 292 of 1998 and allied matters.
25. In view of the aforesaid developments which are admittedly subsequent to filing of this petition the limited question that would survive is whether this petition is required to be decided on merits and the Court is required to mould relief accordingly as urged by the learned Advocate for the petitioner.
26. It is necessary to note that Company Application No. 292 of 1998 was moved by the petitioner on 8/9/1998 i.e. prior to filing of the present petition. As can be seen from the prayers made in Company Application No. 292 of 1998 it is apparent that the petitioner has sought similar, if not identical, reliefs both in the said Company Application and the present petition. Hence, for this additional reason also the present petition is not required to be entertained as the relief sought for by the petitioner can be equally available in the proceedings in Company Petition No.2 of 1998 and Company Application No. 292 of 1998 and cognate matters.
27. The aforesaid directions vide order dated 23/7/1999 in Company Petition No. 2 of 1998 have created a situation whereby it is not possible to hold that the orders of the Board and the Appellate Authority are bad in law. As can be seen from paragraph No.5 of the said order the petitioner was permitted to present a revised scheme : therefore, till that date i.e. 23/7/1999, no acceptable scheme was available on record. Even the list of assets required for revival/running of weaving unit was not available as is evident from Direction 'F' of the said order dated 23/7/1999. Not only that : the said list was not available on 22/2/2000 as submitted by the Official Liquidator and recorded in order dated 22/2/2000. Thereafter, the petitioner moved Company Application No. 113 of 2000 seeking extension of time upto 31/3/2000 for submitting proposed scheme and the list of assets. These proceedings and orders are eloquent enough to show that the petitioner had not presented a viable scheme before the Board; and hence, there is no question of holding that the orders of the Board and the Appellate Authority suffer from any infirmity calling for any interference in these proceedings.
28. In the aforesaid factual scenario the subsequent events which have supervened have admittedly taken place in proceedings of Company Petition No.2 of 1998 and cognate matters. The said proceedings are alive. In the circumstances, there is no question of moulding relief in this petition on the basis of such subsequent facts to do substantial justice between the parties, because the rejection of the present petition is not going to result in any prejudice to the petitioner. In fact, this is the only way of making the right or remedy claimed by the petitioner just and meaningful as also legally and factually in accord with the current realities.
29. As a consequence, the present petition requires to be rejected : there being no jurisdictional error in the order of the Board or the Appellate Authority, the orders cannot be termed as not being in accordance with law, the orders not being either malafide or in breach of rules of natural justice. In short, the orders not being capricious or irrational or discriminatory or violative of any constitutional or statutory provisions. The Court is required to balance the competing interest and for this purpose the interest of all concerned, viz. the petitioner, the secured creditors, the contesting workmen's unions, shareholders and others will be taken care of more particularly only in proceedings of Company Petition No.2 of 1998 and cognate matters.
30. The petition is accordingly rejected. There shall be no order as to costs.