TMI Blog2013 (8) TMI 547X X X X Extracts X X X X X X X X Extracts X X X X ..... 1065 - SUPREME COURT OF INDIA]. Matter Sub-judice - Disputed question of facts – The Debt Recovery Tribunal is a forum where a detailed enquiry and trial can be held and after recording of evidence and cross examination the tribunal would in a better position to decide the questions of fact which are in dispute by recording a finding with regard to the unit being in commercial production for two years or not - The matter was already sub-judice before the Debt Recovery Tribunal where the dispute in question can be more appropriately dealt with – it was not appropriate for the Court to interfere in the matter – the Debt Recovery Tribunal comes to the conclusion that the requirements of the Master Circular were fulfilled, the Debt Recovery Tribunal can issue direction for grating benefit to the petitioner as per the scheme or circular of the Reserve Bank of India – Decided against petitioner. - Writ Petition No : 18750 OF 2010 - - - Dated:- 26-4-2012 - RAJENDRA MENON J. Shri Manoj Sharma, learned counsel for the petitioner. Shri Sanjay Agrawal, learned counsel for the respondent. ORDER Challenging the action of the respondents in not giving benefit of rehabilitati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent from Annexure-P1. The Petitioner's unit is engaged in the process of manufacturing tomato paste and other food items and for the purpose of establishing the unit, financial accommodation was taken by the petitioner from two financial institutions namely I.C.I.C.I Bank and the respondent/State Bank of India. The term lone of Rs.118.00 lacs was taken by the I.C.I.C.I. Bank and the term lone of Rs.23.60 lacs along with the Working Capital of Rs.75 Lacs was obtained from the State Bank of India. The entire project was commissioned in July 2008 at an estimation of cost of Rs.234.40 lacs. According to the petitioner, due to certain unavoidable circumstances, beyond the control of the Management and promoters, petitioner's establishment started sufferings various losses leading to erosion of capital by more than 50%, as a result, the petitioner committed default in it's commitment for re-payment of financial accommodation granted by the banks. 6. According to the petitioner, the petitioner comes within the purview of a sick industry as defined under Clause 3.5.1 of the Industrial Policy 2010 formulated by the Government of Madhya Pradesh as contained in Annexure-P2. As both the cond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from Annexure-R1, the Company was found to be not in production since 19.8.2009. Accordingly, referring to various documents i.e. report Annexure- R1, the electricity bills with regard to electricity dues of the petitioners establishment, Shri Sanjay Agrawal submitted that the unit is not functioning and is not in the commercial production from the year 2009, the production has been stopped since August, 2009 and, therefore, it is stated that a mandamus for enforcing a Master Circular cannot be issued by this Court. It was also stated by Shri Sanjay Agrawal that the H.T. Electricity connection of petitioner's establishment was disconnected on February 2001, the account of the petitioner's establishment was declared as a nonperforming account on 19.8.2010. Notices were issued to the petitioner to pay the dues along with the interest and on 3.12.2010, a claim has been filed by the Bank before the Debt Recovery Tribunal and as the dispute is pending before the Debt Recovery Tribunal, the matter should be left to be decided by the D.R.T and at this stage no mandamus can be issued, it is pointed out by Shri Sanjay Agrawal that after issuing notice to the petitioner and the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes (Supra), the principles laid down in the case of Oriental Bank of Commerce (Supra) is said to be per incurim and the principles laid down in the case of Central Bank of India (Supra) is found to be laying down the correct principle of law. Accordingly, there is no dispute with regard to the fact about jurisdiction of this Court to issue a mandamus for enforcement of the Master Circular Annexure-P3 issued by the Reserve Bank of India. 13. However, for issuing the mandamus and commanding the respondents to give effect to the rehabilitation scheme, this Court has to be satisfied that the pre-conditions stipulated for applicability of the circular or scheme are fulfilled. That being so, it is thought appropriate to consider as to whether from the material available on record, the applicability of the circular is fulfilled or not. Clause-4.6 of the circular Annexure-P3 reads as under: 4.6 Guidelines on rehabilitation of sick (now MSE) units (based on Kohli Working Group recommendations) As per the definition, a unit is considered as sick when any of the borrowal account of the unit remains substandard for more than 6 months or there is erosion in the net worth due to accumu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the unit has been in commercial production for a period of two years but from the documents filed by the respondents particularly the inspection report, this Court is not in a position to give a specific finding in this regard. In the return Annexure-R1 dated 18.1.2010, reference is made to certain statement made by one Shri Mukul Mittal, a representative or the office bearer of the Company and the statements recorded in this inspection report indicate that there is no sign of production since 19.8.2009 and it was indicated at the time of inspection that due to non-production, the management is thinking to sell or lease out the unit. The competent authority of the Bank in Para-5 of the report indicates that the commercial production is stopped since 2009. 16. Even though, Shri Manoj Sharma by referring to a communication available on record along with I.A.No.13950/2011 referred to certain observations made by the Bank indicating that the functioning of the unit is in low level but the fact remains that the documents and the rival affidavits filed by the parties indicate different aspects of the matter and there is serious dispute with regard to the fact, as to whether the u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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