Paharpur Cooling Towers Ltd. , Kolkata v. Empee Sugars and Chemicals Ltd. , Andhra Pradesh
2017-09-07
M.S.RAMACHANDRA RAO
body2017
DigiLaw.ai
ORDER : M.S. Ramachandra Rao, J. This application is filed by the applicant to recall the order dated 9.12.2014 in CP No.180 of 2013 closing the said company petition and seeking its restoration to the file of this Court. 2. It is stated by the applicant in this application that the respondent-Company owes money to it; CP No.180 of 2013 was filed by the applicant under Section 433(e) and (f) and Section 439 of the Companies Act, 1956 (for short 'the Act') for winding up the respondent-Company; that the respondent-Company entered appearance and contested the matter; that during the pendency of the company petition, a Memo was filed before this Court stating that the respondent-Company had made a reference to the Board for Industrial and Financial Reconstruction (BIFR), New Delhi under Section 15(1) of the Sick Industrial Companies (Special Provisions) Act, 1985 (for short "SICA"); that the case was registered as Case No. 69 of 2014 as per the order dated 18.11.2014 of the Registrar, BIFR; and in view of the said development, this Court passed an order on 9.12.2014 closing the company petition with liberty to the applicant to seek revival of the same depending upon the order passed by the BIFR in Case No. 69 of 2014. 3. It is stated that the applicant-Company that it even filed application before the BIFR to implead it as a party to the BIFR proceedings; but before the said petition would be taken up, Notification dated 25.11.2016 was issued by the Ministry of Finance, Government of India stating that on or from 1.12.2016 SICA Act stood repealed under the Sick Industrial Companies (Special Provisions) Repeal Act, 2003 (for short 'the Repeal Act'). It is stated that by a further Notification dated 25.11.2016 it had notified that 1.12.2016 is the date for the purpose of clause (b) of Section (4) of the Repeal Act; and by virtue of the same, with effect from 1.12.2016, the BIFR and its Appellate Authority also stood dissolved and the proceedings pending before the said authority automatically stood abated. 4.
4. The applicant contends that Section 22(1) of the SICA merely prohibited the applicant from initiating any coercive measure or winding up, etc., and once the said Act was repealed and the Form created under the said Act no longer exists, there is no impediment for this Court to hear the Company Petition No.180 of 2013, by restoring it to the file of this Court. 5. It is pointed out that under proviso to Section 4(b) of the Repeal Act though the respondent-Company may seek reference to the National Company Law Tribunal under the Insolvency and Bankruptcy Code 2016 (for short 'IBC') within 180 days from the commencement of the said IBC, even the said provision will not take away the jurisdiction of this Court to recall its order dated 9.12.2014 in CP No.180 of 2013 and restore to file of this Court. 6. Sri Challa Gunaranjan, Counsel appearing for respondent did not dispute the legal position that this Court can revive the Company Petition No.180 of 2013, once the proceedings before the BIFR stood abated and the forum under SICA Act i.e., BIFR stood dissolved, but he contends that the respondent-Company had filed application under Section 10 of the IBC on 24.8.2017 and in view of the said development, the Forum under the said code will be dealing with the issue as to whether the respondent-Company can be wound up or not and so it is not necessary for this Court to restore the CP No.180 of 2013. 7. After considering the contentions of both parties, I am of the opinion that the applicant herein had approached this Court way back in 2013 seeking winding up of the respondent-Company and because of the reference sought by the respondent-Company before the BIFR in Case No.69 of 2014, this Court had passed order on 9.12.2014 closing the company petition with liberty to the petitioner to revive the same depending on the order passed by the BIFR in Case No. 69 of 2014. 8. Once the BIFR itself stood dissolved and the SICA Act, under which it was formed, came to be repealed, there cannot be said to any impediment in Law for this Court to proceed with the company petition.
8. Once the BIFR itself stood dissolved and the SICA Act, under which it was formed, came to be repealed, there cannot be said to any impediment in Law for this Court to proceed with the company petition. Merely because the respondent-Company has a chance to approach the NCLT under the IBC, that does not in any way take away the power of this Court to restore the company petition and decide it. 9. If the stand of the respondent-Company is accepted, the applicant would be compelled to litigate the respondent in NCLT. Therefore, I do not seek any valid impediment in Law to the revival of the company petition by recalling the order dated 9.12.2014 passed by this Court in CP No.180 of 2013. 10. Accordingly, this application is ordered and the order dated 9.12.2014 passed in CP No.180 of 2013 closing the said company petition is recalled and the said company petition is restored to the file of this Court.