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Judgment
D.N. Patel, J.—Counsel for the Petitioner submitted that the Respondents are party to the proceedings initiated before the Board for Industrial and Financial Reconstruction Case No. 122 of 2001.
Moreover, it is further submitted by the counsel for the Petitioner that as per Annexure-10 to the memo of this writ petition, the claim was lodged by Respondent Nos. 2 and 3 before the BIFR and Operating Agency on 6/8 May, 2003 whereas, the scheme for revival was passed by BIFR on 21st November, 2003. Despite this fact, the scheme was not reflecting the dues of Respondent Nos. 2 and 3 to be paid by the present Petitioner. Moreover, the modification application has also been preferred by Respondent Nos. 2 and 3 regarding the scheme sanctioned by the BIFR and the Respondents have failed to point out before this Court what has happened to their application. Thus, no liability is fastened upon the present Petitioner for the sanctioned scheme of the BIFR and the order was also conveyed to Respondent Nos. 2 and 3, which is reflected from Annexure-5 to the memo of the present petition.
Clause 6.12(xiii) of the sanctioned scheme under the BIFR, which is at Annexure-4, reads as under:
6.12(xii) All the liabilities not disclosed in the Audited balance sheet including note to accounts would be the personal responsibility of the existing promoters to discharge.
It is further reflected under the sanctioned scheme of the BIFR in paragraph No. 12, which reads as under:-
All the liabilities to the extent not disclosed in the audited balance sheet including notes to accounts would be the responsibility of the existing promoters. However, from the date of the transfer of company/assets by the existing management to TISCO, their liabilities would cease in respect of what has been disclosed in the audited balance sheet. The word ''Promoter'' is required to be modified to reads as the the ''New Promoter'' in Clause 6.12 of the DRS, wherever applicable to reflect the true picture after the assets/management of the company have been transferred to the new management (TISCO)
Thus, the liability which is not reflected in the audited balance sheet is not a liability of the present Petitioner, but, it will be a liability of the earlier management, which is known as existing promoters, as per the sanctioned scheme sanctioned of the BIFR.
It is further submitted by the counsel for the Petitioner that the liability as claimed by Respondent Nos. 2 and 3 for the amount to be paid towards ESI dues was never reflected in the balance sheet of the earlier company and therefore, the Petitioner is not liable being a ''New Promoter'' as per the sanctioned scheme of the BIFR and the sanctioned scheme of the BIFR cannot be presumed to be modified by Respondent Nos. 2 and 3.
In view of these circumstances, counsel for Respondent Nos. 2 and 3 seeks time to present the following before this Court:-
(a) The latest position of the application, preferred by Respondent Nos. 2 and 3 for the modification of the scheme approved by the BIFR.
(b) If at all Respondent Nos. 2 and 3 has lodged their claim before the BIFR in BIFR Case No. 122 of 2001, the copy of their claims will be presented before this Court.
(c) If any final order is passed by modifying the claim then the modification order, passed by the BIFR shall also be presented.
Time, as prayed for, is granted.
Post this matter on 28th July, 2011.