TaxTMI 
TaxTMI 
2013 (8) TMI 848
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....nies Act. 3. On 13.6.1992 respondent no.1 entered into a buy back agreement with M/s PNB Capital Services Limited (hereinafter referred to as the subscriber) a company registered under the Indian Companies Act, 1956. The said company subscribed to the equity shares of respondent no.2 in terms of the said buy back agreement. In case of failure or default on the part of the buyer to buy back the equity shares as stipulated in the agreement, the subscriber was entitled to file a suit for specific performance or in the alternate to sell the entire holding of 10,00,000 shares as were held by the subscriber in the open market. 4. In the year 1996, on the request of respondent no.2, the petitioner bank had granted loan to it. There were three loan accounts of respondent No. 2. Respondent no.1 had stood guarantee to the said loan. Respondent No. 2 defaulted in its repayment schedule. 5. The petitioner Bank was accordingly constrained to file OA No.110/1996 against the respondent no.2. 6. In the same year i.e. in 1996 the subscriber filed a suit for specific performance (Suit No.674/1996) before the High Court against Satinder Kapur for not adhering to the buy-back agreement. Su....
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....sp; ** ** It is requested that as part of the OTS sanction terms, and upon complete payment of the OTS amount by the undersigned, the bank shall settle, compound and withdraw all pending matters that may have been filed by it against the company, its Directors and Guarantors, and pending before various courts and tribunals of competent jurisdiction, including but not limited to OA No.110/96 pending before the Hon'ble DRT, New Delhi and also the Criminal Case pending before the Patiala House Courts at New Delhi." 10. On 06.01.2008 Satinder Kapur wrote to the petitioner bank increasing his initial OTS offer of Rs.75 lacs to Rs.125 lacs; he also sought confirmation of the acceptance of the OTS proposal. 11. On 29.01.2008 the Bank wrote back to Satinder Kapur informing him that the OTS of Rs.125 lacs has been accepted; the up front amount of Rs.5 lacs having been deposited, the balance of Rs.120 lacs should be paid within three months. This letter in para 7 notes as under: "Compromise is being considered by bank as commercial decision & shall have no bearing whatsoever o....
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....p; 08.04.2009 To whom it may concern Certified that Sh.Satinder Kapur has entered into an OTS for Rs.125.00 lacs in the account of M/s Indian Megnetcs Ltd. and has deposited the entire OTS amount. The Bank has no dues against the party. Chief Manager Shri Satinder Kapur C-39, Anand Niketan New Delhi-110021" 15. It is relevant to point out that not only the no dues certificate but in fact all correspondences exchanged were between the petitioner Bank and Satinder Kapur. 16. On 28.10.2010 the DRAT passed the following order "28.10.2010 Mr.Justice J.M. Malik Present: Mr.Manish Gandhi, Counsel for the appellant Mr. Ashim Vachher, Advocate for Respondent No.1 Mr. U.N. Singh, Advocate for OL. Costs not deposited. One more opportunity granted to deposit the same before the next date of hearing. Complete paper be given to the counsel for the respondent. Counsel for the respondent submits that to his mind the matter stands settled and he wants to seek instructi....
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....of the parties were present. The DRT had, by this order, only endorsed the finding already returned by the DRAT which had on 04.11.2010 had already disposed of T.A. No.3/2005. 22. As pointed out supra neither of these aforenoted orders i.e. order dated 04.11.2010 and 22.11.2010 have been challenged. Both these orders dated 04.11.2010 (DRAT) and 22.11.2010(DRT) have since attained a finality. There is no dispute to this. 23. On a specific query put to the learned senior counsel for the petitioner on this score he fairly concedes that this writ petition has not challenged the aforenoted orders but has only restricted its challenge to the orders dated 02.9.2011 and 22.9.2011 which were passed by the DRAT seeking a review of the orders dated 04.11.2010 and 22.11.2010 . These orders dated 04.11.2010 and 22.11.2010 having thus attained a finality, thus Court can go behind those orders. The challenge in the writ petition is confined only to the orders dated 02.9.2011 and 22.9.2011. 24. On 02.09.2011, the following order was passed:- "02.09.2011 Mr. Justice R.K. Gupta Present: Mr. Aman Shankar, counsel for the applicant &n....
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....d by the bank this Tribunal has already passed an order on 02.09.2011. The respondent bank moves another application to review the order dated 02.09.2011 which was passed in the review application. On the basis of the aforesaid by applying the analogy of Order XLVII Rule 9 CPC no second review is applicable and the review application is dismissed. Copies of this order be furnished to the parties as per law and one copy be sent to the Ld. DRT forthwith." 27. The order dated 02.9.2011 had dismissed the review petition sought for by the bank on the ground that a second review is not maintainable. 28. It is in this background that the arguments of the petitioner have to be appreciated. 29. Learned senior counsel for the petitioner submits that the bank had entered into an OTS only with respondent no.1; Satinder Kapur was acting as director of respondent no.2; there was no occasion for the bank to have suffered such a heavy monetary loss and would have agreed to compromise the matter for Rs.125 lacs which would include not only the three defaulting loan accounts of the company but also other dues under the buy-back agreement; this was never the intention of the Bank and i....
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.... New Delhi and also the Criminal Case pending before the Patiala House Courts, New Delhi. The language of this paragraph makes it abundantly clear that the parties had all along intended that on the acceptance of the OTS by the bank not only would the O.A. No.110/1996, the Criminal Case pending before the Patiala House Courts but all other pending matters would be withdrawn against the company, its directors and guarantors. It was not restricted to the O.A. and the Criminal Case alone it; was to encompass all such pending litigations inter se the parties which were not only against respondent no.2 but also against its directors and guarantors. Intent of the parties to settle all matters including the T.A. was abundantly clear from this communication. 32. Satinder Kapur had given a personal guarantee for the loans advanced to respondent no.2. The company was, however, not in good shape and on a reference made by Board for Industrial & Financial Reconstruction (BIFR) under Section 20 of the Sick Industrial Companies (Special Provisions) Act, 1985 the company was wound up in C.P. No.433/1998 on 01.12.2000. Admittedly, the company was in liquidation and the Official Liquidator had t....