JUDGMENT - LODHA R.M., J.:---Shiva Suitings Limited-the first petitioner is a company incorporated under the Companies Act. The company was incorporated in the year 1985. The company at the relevant time was engaged in the activity of processing of manmade fabrics and cotton fabrics with the aid of power. The first petitioner's factory is situate at MIDC Industrial Area, Dombivli (East), District Thane, Maharashtra. It is petitioners case that the production was commenced in January 1987. They had paid up capital of Rs. 154.78 lakhs. On 31st March, 1993 for the year 1992-93 the value of plant and machinery of the first petitioner company was Rs. 3.74 crores and the paid up capital was Rs. 154.78 lakhs. The accounts of the first petitioner company for the year ended 31st March, 1993 were finalised on 30th September, 1993. At that time the net worth of first petitioner company eroded and they had accumulated losses exceeding the entire net worth. Sick Industrial Companies (Special Provisions) Act, 1985 (for short "SICA") was amended by Sick Industrial Companies (Special Provisions) Amendment Act, 1993. The amendment Act came into force on 1st February, 1994 whereby the definition of "sick industrial company" was substituted. It is the petitioners case that upon amendment of SICA by Amendment Act of 1993 with effect from 1st February, 1994, the first petitioner company satisfied all the conditions of sick industrial company and the Board of Directors of the first petitioner company passed a resolution in its meeting held on 1st April, 1992 forming an opinion that petitioner company was sick industrial company and therefore a reference be made to the Board for Industrial and Financial Reconstruction under section 15 of SICA. Accordingly on 12th April, 1994, the reference was made. The Registar of Board for Industrial and Financial Reconstruction (for short "BIFR") declined to register the reference on the ground that there were no workmen engaged in the first petitioner company and therefore it was not an industrial company. The communication was sent accordingly to the petitioners on 30th June, 1994. Admittedly no steps were taken in challenging the order dated 30th June, 1994 of the Registrar whereby he declined to register the reference. The communication was sent accordingly to the petitioners on 30th June, 1994. Admittedly no steps were taken in challenging the order dated 30th June, 1994 of the Registrar whereby he declined to register the reference. It appears that thereafter the Board of Directors again passed resolution on 27th January, 1995 to lodge a fresh reference before BIFR and pursuant thereto fresh reference was filed by the first petitioner company on 4th March, 1995. The Registrar of BIFR again declined to register this reference on the ground that from the available material it could not be ascertained that the workers were employed in the factory for the relevant period. The communication dated 29th June, 1995 sent by Registrar of BIFR to the first petitioner declining registration of the reference was also not challenged by the first petitioner company. It appears that thereafter third reference was lodged by the first petitioner company on 11th September, 1995. Certain defects were found in the said reference and first petitioner company was called upon to rectify the said defects. It appears that ultimately the said reference was held as not maintainable by BIFR by its order dated 8th February, 1996 as according to BIFR the first petitioner company ceased to be an industrial company since March 1993 and it did not fulfil the requirement under section 3(1)(o) of SICA. Aggrieved thereby the petitioners preferred appeal before the Appellate Authority for Industrial and Financial Reconstruction (for short "AAIFR"). AAIFR set aside the order of BIFR passed on 8th February, 1996 and sent the matter back to BIFR for fresh hearing and consideration of the matter. After hearing the first petitioner company by the order dated 11th August, 2000, BIFR did not find the case fit for registration of reference and rejected the same. Aggrieved thereby the petitioners preferred appeal. The AAIFR on 30th April, 2001 rejected the appeal. The order of AAIFR dated 30th April, 2001 and the order of BIFR dated 11th August, 2000 are impugned in the present writ petition. 2. Mr. Sathe, learned Counsel appearing for petitioner, invited our attention to the amended provisions of section 3(1)(o) of SICA and submitted that the AAIFR seriously erred in holding that cause of action occurred to the first petitioner company on 1st October, 1993 and since reference was not made within sixty days by the first petitioner company it was not maintainable. Mr. Sathe, learned Counsel appearing for petitioner, invited our attention to the amended provisions of section 3(1)(o) of SICA and submitted that the AAIFR seriously erred in holding that cause of action occurred to the first petitioner company on 1st October, 1993 and since reference was not made within sixty days by the first petitioner company it was not maintainable. Relying upon the explanation appended to Clause (o) of section 3(1) of SICA, the learned Counsel submitted that the first petitioner company shall be deemed to have become sick industrial company on 31st March, 1993 and therefore the reference ought to have been considered by the BIFR on merits and the AAIFR ought to have set aside the order of BIFR. The learned Counsel submitted that the first petitioner company submitted voluminous record before the BIFR to show that as on 31st March, 1993 fifty or more workers were employed in the factory of the first petitioner company. In substance submission of the learned Counsel for the petitioners is that on 31st March, 1993, the first petitioner company established to be a sick industrial company and therefore the reference should have been entertained and considered on merits. 3. There is no dispute that in respect of the accounts for the year ended 31st March, 1993 the Auditors submitted their report on 30th August, 1993 and the accounts were finalised and approved by the Board of Directors on 30th September, 1993. The Auditors in their report made on 30th August, 1993 opined this: "In our opinion and as per the information and explanation given to us, section 3(1)(o) of the Sick Industrial Companies (Special Provisions) Act, 1985 is not applicable to the company, though the accumulated losses exceed the entire net worth of the company." 4. It would be thus seen that as per the provisions existing on 31st September, 1993, the first petitioner company was admittedly not covered by the then existing definition under section 3(1)(o) of SICA and was not a sick industrial company within the meaning of SICA. As already indicated above by the Amendment Act of 1993, amendments were made in SICA which came into effect on 1st February, 1994. As already indicated above by the Amendment Act of 1993, amendments were made in SICA which came into effect on 1st February, 1994. The amended definition of sick industrial company reads thus : "(o) "sick industrial company" means an industrial company (being a company registered for not less than five years) which has at the end of any financial year accumulated losses equal to or exceeding its entire net worth. Explanation.---For the removal of doubts, it is hereby declared that an industrial company existing immediately before the commencement of the Sick Industrial Companies (Special Provisions) Amendment Act, 1993, registered for not less than five years and having at the end of any financial year accumulated losses equal to or exceeding its entire net worth, shall be deemed to be a sick industrial company; (e) "industrial company" means a company which owns one or more industrial undertakings; (f) "industrial undertakings" means any undertaking pertaining to a scheduled industry carried on in one or more factories by any company but does not include- (i) an ancillary industrial undertaking as defined in Clause (aa) of section 3 of the Industries (Development and Regulation) Act, 1951 (65 of 1951); and (ii) a small scale industrial undertaking as defined in Clause (j) of the aforesaid section 3." 5. There is no dispute that based on the aforesaid definition of sick, industrial company which came into effect on 1st February, 1994, the Board of first petitioner company on 1st April, 1994 passed resolution that reference be made under section 15 of SICA since first petitioner company was a sick industrial company. The said reference made by first petitioner company on 12th April, 1994 came to be rejected by the Registrar by the communication dated 30th June, 1994 which reads thus : "Please refer to your letter dated 12-4-94 filing a reference in Form 'A'. The reference is not in order and you were asked, vide this office letter of even number dated 24-5-94, to furnish certain information/document by 17-6-94, failing which the reference would be declined for registration. So far no reply has been received from you. 2. Further the Bombay High Court have appointed Court Receiver in two petitions filed by creditors against the company for its winding up. So far no reply has been received from you. 2. Further the Bombay High Court have appointed Court Receiver in two petitions filed by creditors against the company for its winding up. It has been the consistant approach of this Board that it should not by its orders put itself in conflict with the directions given by the High Court and that the forum of BIFR should not be used to thwart the process in High Courts. 3. Secondly there are no workers presently working in the factory. Thus the applicant company does not have an industrial undertaking/and is therefore not an "industrial company" as defined in section 3(1)(e) read with section 3(1)(f) of SICA, 1985. In the light of the above, the reference is declined for registration." 6. Admittedly no appeal was preferred against the order passed by Registrar declining registration of reference. Be it noted that Board for Industrial and Financial Reconstruction Regulations, 1987 have been framed under SICA and Clause (8) of Regulation 19 provides an appeal against the order of Registrar declining to register a reference by the aggrieved person to the secretary within fifteen days of communication to him of such an order. It is not in dispute before us that the first petitioner company did not choose to file any appeal against the communication dated 30th June, 1994. 7. Though the first petitioner company did not choose to file any appeal against the order of Registrar declining registration of reference, vide communication dated 30th June, 1994, it is not in dispute that the Board of Directors of the first petitioner company on 27th January, 1995 again passed a resolution to register a fresh reference and accordingly fresh reference was filed on 4th March, 1995. This reference was also decided not to be registered by the Registrar and a communication to this effect was sent by the Registrar to the first petitioner company on 29th June, 1995. The communication dated 29th June, 1995 reads thus: "Please refer to your letter dated 4-3-1995 forwarding a reference in Form 'A'. The reference is not in order as it suffers from the following defects:- a) The reference is made in pre-revised Form 'A'. b) Copies of valid factory licence have not been furnished. c) Unit is lying closed since 1-8-94. 2. The reference is not in order as it suffers from the following defects:- a) The reference is made in pre-revised Form 'A'. b) Copies of valid factory licence have not been furnished. c) Unit is lying closed since 1-8-94. 2. It may be stated that in the absence of valid factory licence and no manufacturing activity being carried on in the factory since 1-8-94. The company cannot be constructed to own a factory within the definition of the term 'factory' contained in section 3(c) of the I (D R) Act, 1951 which definition is relevant for the purpose of SICA, 1985. Accordingly, the company is not an industrial company as defined under section 3(e) (f) of SICA, 1985. 3. Further, from the details of workers furnished by the company, it cannot be ascertained that the figures given for numbers of workers employed in the factory are for the relevant period (1993-94) or not. 4. In view of the above, the reference submitted under section 15(1) of the Act, is not in order and is declined for registration." 8. This communication or order of Registrar too was not challenged. The Board of Directors of first petitioner company thereafter again decided to make fresh reference and passed resolution to that effect and accordingly the first petitioner company filed fresh reference on 11th September 1995. The question therefore has to be seen whether on the date the reference was made on 11th September, 1995, the first petitioner company was sick industrial company within the meaning of section 3(1)(o) or not. The "sick industrial company" is defined under Clause (o) which means an industrial company, being the company registered for not less than five years and which has at the end of any financial year accumulated losses equal to or exceeding its entire net worth. "Industrial company" means a company which owns one or more industrial undertakings and "industrial undertakings" means any undertaking pertaining to a scheduled industry carried on one or more factories by any company. "Factory" is defined under the Industries (Development and Regulation) Act, 1951 which inter alia means where manufacturing process is being carried on with the aid of power provided fifty or more workers are working or were working thereon on any day preceding of twelve months. "Factory" is defined under the Industries (Development and Regulation) Act, 1951 which inter alia means where manufacturing process is being carried on with the aid of power provided fifty or more workers are working or were working thereon on any day preceding of twelve months. It is not in dispute before us that after 31st March, 1993 the factory was closed and that no payment was made towards salary or wages of any of the employees. It would be thus seen that for the period preceding twelve months from 11th September, 1995 in the first petitioner company no workers were working much less fifty or more workers. In this view of the matter, the first petitioner company cannot be held to be a sick industrial company within the meaning of section 3(1)(o) of SICA. 9. It is true that AAIFR has proceeded on the assumption that the cause of action arose to the first petitioner company on 1st October, 1993 and the reference was not made within sixty days therefrom and therefore reference could not be registered under section 15 of SICA may not be correct proposition but for the reasons which we have indicated above, the first petitioner company cannot be held to be sick industrial company. Though learned Counsel for petitioners sought to contend that the reference so made on 11th September, 1995 was nothing but in continuation of the reference made on 12th April, 1994, we find ourselves unable to agree with the submission made by the learned Counsel for the petitioners. We have already indicated above that the Board of Directors initially passed a resolution on 1st April, 1994 for making reference under section 15 of SICA and pursuant thereto reference was made on 12th April, 1994 but the said reference was not registered by Registrar and though the appeal was maintainable against the said order, the first petitioner company did not choose to challenge the said order. Once reference is declined it is deemed not to have been made. Even in the memo of writ petition, the petitioners have stated that thereafter a second resolution was passed by the Board of Directors in its meeting held on 27th January, 1995 and accordingly fresh reference was filed on 4th March, 1995. Once reference is declined it is deemed not to have been made. Even in the memo of writ petition, the petitioners have stated that thereafter a second resolution was passed by the Board of Directors in its meeting held on 27th January, 1995 and accordingly fresh reference was filed on 4th March, 1995. Thus, the second reference made on 4th March, 1995 was a fresh reference which too was rejected by the Registrar on 29th June, 1995 as not fit for registration. Still that order was not challenged in appeal by the first petitioner company and therefore third reference was made on 11th September, 1995. Obviously therefore first petitioner company has to satisfy that it was sick industrial company on 11th September, 1995 which it failed to do for the reasons we have already indicated above. 10. All in all, no case for invocation of writ jurisdiction is made out. 11. Rule is discharged. No costs. -----