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TMI Blog2001 (11) TMI 914X X X X Extracts X X X X X X X X Extracts X X X X ..... e and leasing facility on vehicles and machinery and equipment. According to the petitioner, the respondent entered into a hire purchase agreement with it. The respondent undertook to pay amount due in instalments. The respondent-company committed default in payment of instalments due from November 30, 1995, in respect of several other hire purchase agreements. In spite of demands made by the petitioner, the respondent has not made any payment. According to the petitioner, the respondent is due and liable to the petitioner, as on 15-2-1997, for a sum of Rs. 1,02,52,136.96 in respect of several hire purchase agreements. It is stated that notice has been issued on 18-1-1997, demanding the respondent-company to pay the said sum of Rs. 1,02,52,136.96. But the respondent-company even after the receipt of statutory notice has failed to make the payment. 3. The respondent-company was served and has been taking time. They have not filed counter-affidavit. They have not seriously disputed their liability. The attitude of the respondent-company in other company petitions is also similar. The respondent-company has been taking time in one pretext or other and the matter was getting adjourne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and as there is not proof, bar under section 22 of the Act does not apply. 8. I have carefully considered the submissions made by learned counsel for the petitioner as well as by the respondent-company. Though in the affidavit, the managing director has stated that reference has been made to the BIFR, he has not filed any proof of receipt by the BIFR except a receipt from Blue Dart Express Limited dated 30-5-2001, and there is no proof for the receipt of reference to the BIFR. 9. Learned counsel for the respondent-company requires adjournment for production of the material for the proof of receipt of reference made to the BIFR and the matter has been adjourned. Today, the matter is posted. Today also the respondent has not produced any proof of evidence, though it has been stated in the affidavit that reference has been received by the BIFR on 31-5-2001. 10. In the absence of the material or evidence to show that reference has been received by the BIFR, I have to hold that the bar under section 22 of the Act does not apply. The respondent has not established the bar under section 22 would apply as there is no receipt for the reference by the BIFR. Once, section 22 of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference under section 15 has been made and that the winding up proceedings has to be set aside as proof has been submitted. 6. On behalf of the petitioner-company, the said application has been resisted relying upon the decision of the Apex Court in Real Value Appliances Ltd. v. Canara Bank [1998] 93 Comp. Cas. 26 1 ; and contending that from the time of registration of reference by the BIFR, the enquiry under section 16 is deemed to commence. In other words, the proceedings under the Sick Industrial Companies (Special Provisions) Act, commence only from the time of registration and not before. In the present case, it is pointed out that the winding up order came to be passed by this court on 25-6-2001, and being a valid order, it is not liable to be set aside. 7. As already pointed out, a number of winding up petitions were pending against Tan India Ltd. It is essential to set out certain material dates. C.P. No. 243 of 1997 was presented on 29-4-1997. The company petition was taken on file on 3-9-1997. This court ordered notice regarding admission on 12-9-1997. Since then onwards, the company petition is kept pending. As held by N.V. Balasubramanian, J. the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11 of 2001, dated 6-8-2001. But even on 25-6-2001, the company has been ordered to be wound up. Therefore, it is clear that on the date when this court ordered winding up, there was no legal impediment and the order of winding up is not liable to be set aside, nor liable to be interfered with on that score. However, Mr. Kadarkarai, the learned counsel appearing for the company, while drawing the attention of this court to section 22 of the Sick Industrial Companies (Special Provisions) Act, points out that all the further proceedings have to be stayed, which includes the proceedings even after winding up order being passed. 11. Per contra, Mr. Seshadri, the learned counsel appearing for the petitioner-company points out that the winding up order has been validly passed and it is not liable to be interfered with and if at all, there could be a stay of all further proceedings, but the same will not take away the vesting of the properties of the company with the liquidator. 12. The attention of this court is drawn to the pronouncement of the Apex Court in Rishabh Agro Industries Ltd. v. P.N.B. Capital Services Ltd. [2000] 101 Comp. Cas. 284. The Apex Court in the said ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not in fact commence at the time of presentation of the petition itself it shall be presumed to commence from that stage. The word " deemed used in the section would thus mean, supposed , considered , construed , thought , taken to be or presumed ." (p. 292) Therefore, it follows that all further proceedings to be proceeded after winding up order under the company petition has to be stayed by this court till the disposal of pending reference in Case No. 311 of 2001 on the file of the BIFR has to be stayed. 13. This court is not inclined to set aside the winding up order since on the date when the winding up order was passed, the learned judge had rightly held that the company has to be wound up as it is unable to pay its debts, it is commercially insolvent and it is not in a position to discharge its current liability. Therefore, the order of winding up is not liable to be set aside, but there will be a stay of all further proceedings in the company petition pending the reference in Case No. 311 of 2001 pending before the BIFR. Liberty is given to either parties to move this court as and when the proceedings before the BIFR conclude. It is needless to add that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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