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Judgment
Ranjit Singh, J
The appellant herein had filed an application before the Tribunal below for suspension of proceedings on the ground that the appellant company was before BIFR on a scheme referred to under Section 17 of the Sick Industrial Companies (Special Provisions) Act, 1985 (for short, SICA), which was under consideration. The prayer of the company for suspending the proceeding before the Tribunal is declined by the Tribunal below by observing that no proceedings are or were pending before BIFR in respect of the appellant company. Aggrieved against the same, the appellant has filed the present appeal. The plea before the Tribunal below was that the appellant company became sick and had filed a reference in the year 1999 before BIFR for being declared as sick company and for its rehabilitation. In the application itself the company had mentioned that BIFR had closed the reference on 4.10.2001 by observing that the net worth of the appellant company had become positive.
Reference is made to the assignment made by the ICICI Bank of its loan account to Kotak Mahindra Bank and that of IFCI to a company now known as M/s. Alchemist Asset Reconstruction Company Ltd., the applicant of O.A. It is also disclosed that the respondent had filed various cases before different Forum including Company Petition before the Hon'ble High Court of Punjab and Haryana and the present O.A. before the Tribunal below. The appellant had challenged the action initiated by the respondent under the SARFAESI Act by way of Writ Petition before the Punjab and Haryana High Court, which was dismissed on 16.12.2010. this order was impugned by filing an LPA, which was admitted and by way of interim measure surplus land of the appellant company was allowed to be sold. Out of the sale proceeds, Rs. 9 crore was paid to the respondent besides some payment to Kotak Mahindra Bank. The appellant had challenged this order by way of SLP, but the Hon'ble Supreme Court relegated the parties to the High Court.
In response to the notice of this application, the respondent came forward to state that no reference before BIFR or any appeal before AAIFR was pending. It was also stated that no scheme was under preparation in terms of Section 18 of SICA. The respondent, therefore, pleaded that the appellant was not entitled to any protection under Section 22 of SICA to seek stay of proceedings in the O.A.
The Counsel for the appellant has invited my attention to some documents to show that matter is still pending before BIFR. Reference in this regard is made to a letter dated 12.1.2015 written by Registrar of BIFR vide which the miscellaneous application filed by the appellant was returned in original to the appellant. The perusal of this letter would show that the Case No. 197/1997 had been discharged on 4.10.2001 and thus the Bench was not inclined to hear this miscellaneous application.
The Counsel has then made reference to the order dated 3.3.2015 passed by AAIFR holding that the appeal against the communication of the Registrar of BIFR was not maintainable. The AAIFR had given liberty to the appellant to move this application before BIFR for passing appropriate order, with the observation that the application, if filed, would not return at the level of Registrar and will be considered and decided by the Bench.
The appellant has further disclosed that this application has been filed before the BIFR, but has not taken up for consideration due resignation Chairman of BIFR and all hearing listed before the Bench w.e.f. 2.3.2015 have been postponed till further orders.
At best, it can be said that the miscellaneous application filed by the appellant in a discharged reference is pending for being listed. From this, it cannot be said that such proceedings are pending before BIFR which would have effect on the pending proceedings before the Tribunal below.
The Tribunal below has also considered the provisions of Section 22 of SICA to see in case any proceeding can be said to be pending before BIFR to have effect on the proceedings being held in the O.A., Section 22 of SICA clearly provides that where any inquiry under Section 16 of the Act is pending or any scheme referred to under Section 17 is under preparation or consideration or a sanctioned scheme is under implementation or where any appeal under Section 25 relating to an industrial company is pending, then no proceedings for the winding up of the industrial company or for execution, distress or the like against any of the properties of the industrial company or for the appointment of receiver in respect thereof and no suit for recovery of money or for enforcement of any security against the industrial company or guarantee in respect of any loan or advance granted to the industrial company shall lie or be proceeded with further, except with the consent of the Board. The clear wording of Section 22 of SICA would have effect on the suit for recovery of money or for enforcement of security when any inquiry under Section 16 of the Act is pending or when any scheme under Section 17 of the Act is under preparation. The documents shown by the Counsel for the appellant on record would reveal that no inquiry is pending under Section 16 of the Act and so also no scheme is under preparation, consideration or has been sanctioned. As a matter of fact as on date, the reference which was filed in the year 1997 was discharged in 2001 and so, it is not possible to urge that any inquiry under Section 16 is pending or any scheme under Section 17 of the Act is under consideration or preparation or has been sanctioned. The Tribunal below has rightly considered the provisions of Section 22, SICA to reject the prayer made in the application.
The observation by the Tribunal that the M.A. is a complete abuse of process of law is also not much off the mark. The appellant has not raised any objection in this O.A. which is pending since 2008, on the ground of Section 22 of SICA and has suddenly woken up in the year 2015 to move this application. It is thus clear that this application is nothing but a device to delay the disposal of the O.A. which is pending since 2008 which fact in itself is alarming to note. The O.A. is pending decision for last so many years. If any order is needed in the matter, it is to give direction to the Tribunal to dispose of this O.A. as early as possible.
The reference made by the Counsel for the appellant to the judgments in the cases of KSL and Industries Limited v. Arihant Threads Limited & Ors., VII (2008) SLT 243 : 153 (2008) DLT 27 : (2015) 1 SCC 166, Director General of Income Tax (Admn.) & Anr. v. Board for Industrial and Financial Reconstruction, New Delhi & Ors., (2012) 171 Comp Cas 141 (Delhi), Synergy Steels Limited v. The Appellate Authority for Industrial and Financial Reconstruction & Ors., (2011) 167 Comp Cas 25 (Delhi) and Sivananda Steels Limited v. Recovery Officer, E.S.I.C. & Anr., (2007) 137 Comp Cas 773 (Mad) would also not be of any help to the appellant as no proceedings within the purview of Section 22 of SICA are noticed to be pending. The judgments referred to above are in all those cases where as a matter of fact the proceedings were found to be pending either for preparation, consideration or for sanctioning of scheme or for inquiry or a scheme was under preparation, consideration or under implementation. These judgments have no relevance in the present case. No case for interference in the impugned order is made out. The appeal is accordingly dismissed in limine.