1999 (1) TMI 491 - HC - Companies Law

Summary

Issues:
1. Maintainability of the application under Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985.
2. Applicability of Section 446 of the Companies Act for the maintainability of the application.

Analysis:

Issue 1: Maintainability under Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985
The contention raised by the learned counsel for the applicants was that the application seeking the return of the property is maintainable despite proceedings registered before the BIFR, as it falls outside the scope of Section 22 of the Act. However, the court held that Section 22 clearly suspends winding-up proceedings of an industrial company, and the present application being within the winding-up proceedings is affected by this provision. The judgment cited by the counsel was distinguished as it dealt with a suit for return of property, not an application within winding-up proceedings. Therefore, the court rejected the argument that the application is maintainable under Section 22.

Issue 2: Applicability of Section 446 of the Companies Act
The second contention raised was regarding the application's maintainability under Section 446 of the Companies Act. The court noted that Section 446(1) applies when a winding-up order is passed or a provisional liquidator is appointed, which was not the case at the time. The court highlighted that the purpose of Section 446 is to protect the company's assets post-winding up or provisional liquidator appointment. Since the company had gone out of liquidation as per a court order, the court found that Section 446 did not apply to the present case. The need for BIFR's permission was emphasized to facilitate the rehabilitation of the sick company and protect creditors' interests.

In conclusion, the court found no merit in the application, as the applicants had the remedy to approach the BIFR for recovery of the property, as provided under Section 22 itself. The court emphasized the importance of the rehabilitation scheme and protection of creditors' interests, leading to the rejection of the application.