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2022 DIGILAW 164 (GAU)

Union Of India v. Nagaland Pulp And Paper Co. Ltd

2022-02-21

DEVASHIS BARUAH, S.SERTO

body2022
JUDGMENT : DEVASHIS BARUAH, J. Heard Mr. Tongpok Pongener, learned counsel appearing for the appellants. Mr. C.T. Jamir, learned Amicus Curiae, and Mr. E. Thiba Phom, learned Government Advocate appearing for Respondent no. 2. 2. This Writ Appeal is directed against the judgment and order dtd. 18/1/2016 passed in WP(C)/6(K)/2014 whereby the learned Single Judge vide the said judgment and order directed the Respondents who are appellants herein not to give effect to and or enforce the order dtd. 3/10/2012, the order dtd. 18/7/2013, the order dtd. 1/10/2013, the order dtd. 22/10/2013, the order dtd. 25/11/2013 and the order dtd. 2/12/2013 without the consent of the BIFR as provided u/s 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to as the Act of 1985). A perusal of the said judgment and order would reflect that the learned Single Judge did not go into the merits of the challenge to the said orders but on account of the bar contained in Sec. 22 of the Act of 1985 had directed the Respondents not to proceed with the said impugned orders without taking the consent of the BIFR. As such this Court would restrict itself to the legality and validity of the said directions, more so in view of the legislative changes brought by the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the Code of 2016). 3. At this stage it may be relevant herein to mention that the Parliament had enacted an Act under the name and style of the Sick Industrial Companies (Special Provisions) Repeal Act, 2003 (hereinafter referred to as the Act of 2003). By Sec. 3 of the said Act, the Act of 1985 was repealed and the Appellate Authority and the Board were dissolved. Sec. 4 of the Act of 2003 stipulated consequential provisions upon dissolution of the Appellate Authority and the Board. Vide Sec. 5 of the said Act of 2003, the provisions of the Act of 1985 was safe in certain circumstances as stipulated in Sec. 5 of the said Act of 2003. 4. The Parliament, thereafter, enacted the Code of 2016. We are concerned with Sec. 252 and the Eighth Schedule of the said Code of 2016 and the same came into force w.e.f. 1/11/2016. 4. The Parliament, thereafter, enacted the Code of 2016. We are concerned with Sec. 252 and the Eighth Schedule of the said Code of 2016 and the same came into force w.e.f. 1/11/2016. A perusal of Sec. 252 of the Code of 2016 would show that the Act of 2003 stood amended in the manner as specified in the Eighth Schedule. 5. The said Eighth Schedule is relevant for the purpose of the instant proceedings and the same is quoted herein below: "The Eighth Schedule Amendment to the Sicj Industrial Companies (Special Provisions) Repeal Act, 2003 (1 of 2004) In Sec. 4, for sub-clause (b), the following sub-clause shall be substituted namely '(b) On such date as may be notified by the Central Government in this behalf, any appeal preferred to the Appellate Authority or any reference made or inquiry pending to or before the Board under the Sick Industrial Companies (Special Provisions) Act, 1985 (1 of 1986) shall stand abated: Provided that a company in respect of which such appeal or reference or inquiry stands abated under this clause may make reference to the National Company Law Tribunal under the Insolvency and Bankruptcy Code, 2016 within one hundred and eighty days from the commencement of the Insolvency and Bankruptcy Code, 2 0 1 6 in accordance with the provisions of the Insolvency and Bankruptcy Code, 2016: Provided further that no fees shall be payable for making such reference under Insolvency and Bankruptcy Code, 2016 by a company whose appeal or reference or inquiry stands abated under this clause." A perusal of the Eighth Schedule would show that Sec. 4(b) of the Act of 2003 was amended whereby on such date as may be notified by the Central Government, any appeal preferred to the Appellate Authority or in reference made or inquiry pending to or before the Board or in proceeding of whatever nature pending before the Appellate Authority or the Board under the Act of 1985 shall stand abated. The first proviso stipulates that a company in respect of which such appeal or reference or inquiry stands abated under Sec. 4(b) of the Act of 2003 may make a reference to the National Company Law Tribunal under the Code of 2016 within 180 (one hundred and eighty) days from the date of commencement of the Code of 2016 in accordance with the provisions of the said Code. The second proviso to Sec. 4(b) stipulates that no fee shall be payable for making such reference under the Code by company whose appeal or reference or inquiry stands abated on the basis of the newly inserted Sec. 4(b). 6. As already stated hereinabove, the said provisions of 252 of the Code of 2016 as well as the Eighth Schedule were brought into force w.e.f. 1/11/2016; under such circumstances, the writ which was issued vide impugned judgment and order to the effect of not giving effect to the various orders impugned in the writ proceedings without the consent of the BIFR as provided u/s 22 of the Act of 1985 has become infructuous in view of the fact that the reference which was pending before the BIFR stands abated on the basis of the legislative mandate as provided in Sec. 252 read with the Eighth Schedule as well as by nature of Sec. 4(b) of the Act of 2003as newly amended. 7. The Appeal, therefore, stands allowed by setting aside the directions passed by the learned Single Judge in the impugned Judgment.