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Judgment
S.K. Singh, J.—When the matter was first taken up, on behalf of opposite party, i.e., respondent bank, Smt. Archana Singh, learned advocate, appeared who was granted time to get instruction from the bank official and to file an affidavit in view of the observation as made in the order of this court dated 4 October 2006 upon which Smt. Singh got a short counter affidavit filed by Sri Jai Pal Arun, the senior manager of the concerned Bank. Sri Agarwal, learned advocate, has filed rejoinder affidavit to the aforesaid.
After the aforesaid as the issue between the parties appears to be very small although the stakes appears to be high, as jointly submitted/agreed, keeping the matter pending may not serve any purpose to either of the side, the matter has been heard and is being finally decided.
In the matter of recovery of dues payable by the petitioner, having been initiated by the respondent bank, against the order of the Debt Recovery Tribunal, Lucknow, in T.A. No. 137/2002, an appeal-was pending before the Debt Recovery Appellate Tribunal. In the appeal a compromise was arrived at between the parties and that was reduced in writing and that was filed before the DRAT on 19.1.2006 (Annexure-3 to the writ petition), on the basis of which DRAT on that very date, i.e., on 19.1.2006, passed a final order (Annexure-4 to the writ petition) disposing of the appeal in terms of the compromise filed before him. There is no dispute even as on today in respect to that compromise which was arrived at between the parties. In terms of the compromise, petitioner''s company was to pay an amount of Rs. 533.00 lakh within 180 days and, at the same time, there was a provision in the compromise that attachment order in respect of plants and machinery lying with the Department of Customs, New Delhi, in terms of the order of the DRT, Lucknow, is to be withdrawn.
The amount in terms of the compromise appears to have not been paid by the petitioner for the reasons so indicated, which may be mentioned later in this order also and thus an application was moved by the petitioner before the DRT in the execution proceedings for grant of further time to honour the terms of the compromise on the ground that attachment in terms of the compromise/order was lifted on 3 March 2006 and thereafter, immediately petitioner applied for completion of various formalities which is still pending before the concerned competent authority but, at the same time, as attachment was again imposed on 20.6.2006, petitioner could not get advantage of the provision as contemplated in the compromise and thus, he is not in a position to pay huge money. The DRT rejected petitioner''s application upon which petitioner filed appeal before the DRAT who also by the impugned order granting partial relief, directed the petitioner to deposit an amount of Rs. 2.50 crore and the appeal was entertained for hearing.
In view of the aforesaid petitioner has come to this court by mainly pleading the fact that as attachment was not immediately lifted after the order of the DRAT, dated 19.1.2006, he could not get reasonable time Io get plant and machinery utilized to get the huge money arranged for payment to the respondent bank and, therefore, reasonable time, if is allowed, petitioner may be able to honor the term of compromise.
To the aforesaid, no lime having been given, respondent bank has filed an affidavit as noticed above and in para 20 there is a clear statement that there is no attachment of the plant and machinery by the DRT.
Sri Agarwal, learned advocate, who appeared in support of the writ petition submitted that there may be some confusion on the part of the authority/ petitioner in respect to attachment/its withdrawal; but as this has been throughout the stand of the petitioner before the DRT and DRAT in respect to imposition of attachment on account of which petitioner not being in a position to get the benefit of the provision as made in the compromise about withdrawal of the attachment if three months time is allowed, Sri Amit Rastogi, managing director, who is present before this court, undertakes to pay entire amount in terms of the compromise dated 19.1.2006.
To the aforesaid, Sri Singh submits that to show bona fides petitioner is to deposit reasonable amount immediately and if it is undertaken before this court that no further application will be moved for the purpose before any forum and within the time so allowed petitioner will deposit the entire money so agreed, then this court may consider petitioner submission, exercising equity jurisdiction.
In view of the aforesaid, this court is to balance the equity between the parties.
Submission of Sri Agarwal is that a fixed deposit to the tune of Rs. 40.00 lakh is lying with the respondent bank which on having received interest also may not be less than about 45.00 lakh, can be very well utilized by the respondent bank and, at the same lime, an amount of Rs. 20.00 lakh can be deposited by the petitioner immediately. It is pointed out that as on today, petitioner is to incur expenses running into about a crore in getting various exercises for getting the company on line and thereafter by making arrangement of the remaining amount, petitioner is to deposit full and final amount in terms of the compromise order within three months which can be said to be just and reasonable.
In view of the aforesaid, this court need not go into various other aspects as this appears to be quite fair and equitable. If respondent is permitted to recover entire amount by coercive process-then that may cause irreparable and irreversible injury to the petitioner and, at the same time, respondent bank may not be very much beneficiary and by accepting aforesaid submission of Sri Agarwal, respondent bank may not be a loser for the simple reason that the reasonable amount, respondent bank is to get immediately and the entire balance amount within a period of three months as undertaken by the petitioner''s side.
Thus on consideration of the aforesaid, this court disposes of this petition by giving following direction-
Respondent bank is to utilize the amount of fixed deposit of petitioner as stated before this court.
Petitioner is to deposit an amount of Rs. 20.00 lakh within one month from today directly with the respondent bank.
Irrespective of any dispute/controversy about lifting of attachment in terms of the compromise/order dated 19.1.2006 as it has been admitted by the respondent bank in para 20 of the short counter affidavit, the position is being made clear that there will be no attachment in respect to the plant and machinery henceforth.
Entire remaining amount is to be finally paid by the petitioner to the respondent bank within three months from today.
In view of the aforesaid direction, the recovery proceedings by taking coercive process will remain stayed and that can only revive on the being default in compliance of any of the terms as contained in this order in respect of which petitioner states that he will not move any application before any forum. It is made clear that defiance of this order will be treated to be a violation of the order of this court and the person who has given undertaking before this court may be suitably dealt with on filing application by the respondent bank.
In view of the aforesaid arrangement proceedings before the DRT and DRAT stand concluded; and this can only be revived under directions of this court, if occasion so arises.
With the aforesaid, this petition stands disposed of.