Sanjay Kishan Kaul, J.

1. The present writ petition raises the following question of law:

“Whether on approval of a scheme by the BIFR under the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to as the ‘SICA’), an unsecured creditor has the option not to accept the scaled down value of its dues, and to wait till the scheme for rehabilitation of the respondent-Company has worked itself out, with an option to recover the debt with interest post such rehabilitation?”

2. The scheme of rehabilitation of the respondent-Company was approved on 8.4.2008 under the SICA. The dues of the unsecured creditors was dealt with in para 5.1.3 of the sanctioned scheme. The unsecured creditors were identified as raw material suppliers, acceptances, dealers and C & F and inter-corporate deposits. The unsecured creditors could exercise one of the three options:

“a. To accept 30% of the principal outstanding as full and final payment. The payment shall be made within 3 months of the sanction of the scheme by the BIFR; or

b. To accept 40% of the principal outstanding as full and final payment. The payment shall be made in 3 equal installments from the cut off date (i.e. 31.3.2008). The first installment shall be payable within 3 months of the sanction of the Scheme by the BIFR; or

c. To accept 50% of the principal outstanding as full and final payment. The payment shall be made in one go at the end of 3rd year from the sanction of the Scheme.”

3. After incorporating the three options, the aspects of dues to raw material suppliers has been dealt with in the following words:

“Raw-material Suppliers: MRL has already entered into Memorandum of Understanding with 30 Suppliers out of total 36 Pressing Raw Material suppliers. They have accepted for payment as per option (a). Discussions with others are underway by the company management.”

4. The petitioner is a carbon black supplier with whom no settlement was possible. We may notice that it is the say of the petitioner that the debts recorded in the scheme due to the petitioner are much less than the actual debts. The petitioner, thus, aggrieved by the scheme preferred an appeal before the AAIFR to the extent it provided a dispensation for payment of unsecured creditors. The appeal was dismissed on 23.6.2011 which is assailed in the present writ petition. We may note that prior to the impugned order also the appeal was dismissed as barred by time but the matter was carried further and ultimately the AAIFR had to decide the matter on merits.

5. The impugned order records that the respondent-Company was declared sick on 17.5.2006 in terms of Section 3(1)(o) of the SICA and IDBI(Industrial Development Bank of India) was appointed as the operating agency under Section 17 (3) of the SICA to examine the viability of the company and submit its report.

6. The petitioner-Company contended before the AAIFR that the respondent owed a huge amount of Rs.18,30,49,030.00 inclusive of interest up to 31.3.2008 and since the respondent-Company had also failed to furnish Form 3-B under Section 4B (2) of the UP Sales Tax Act within the prescribed period, the UP Sales Tax Department had raised a demand of Rs.45,37,036.00 together with penal interest of Rs.63,59,413.00 amounting to Rs.1,28,96,449.00. It was, thus, the say of the petitioner that BIFR does not have the power to direct the petitioner to sacrifice its dues as no relief/concession/sacrifice was envisaged under Section 19 of the SICA in respect of unsecured creditors.

7. The aforesaid plea was negated by the AAIFR based on its earlier decision in Appeals Nos.233/2006, 301/2007, 247/2006 & 248/2006 titled M/s. ATE Enterprises Pvt. Ltd. Vs. BIFR & Ors. decided on 2.9.2007 where it was observed that though the SICA did not contain any provision for compelling unsecured creditors to provide concession, there is no specific clause which makes it incumbent for BIFR to obtain the consent of unsecured creditors while sanctioning a revival scheme