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TMI Blog2003 (3) TMI 602X X X X Extracts X X X X X X X X Extracts X X X X ..... d. The plaintiff upon the filing of the written statement, moved IA 10326/02 under Order XII, Rule 6, CPC, seeking a decree on the admissions contained in the written statement. The material facts as averred by the plaintiff in the plaint are not disputed or traversed by the defendant in the written statement. The defendant has raised a legal objection with regard to the maintainability of the suit on account of the bar and embargo by virtue of section 22(1) and (3) of the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to as SICA). 2. Before I advert to the above, the relevant facts in brief may be noted. The plaintiff has filed the present suit for mandatory injunction seeking re-possession of the leased ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , by which the ownership of the equipment was retained and remained with the plaintiff: "4.4 Hold the equipment as the bailees of the Lessor and not claim any right, title or interest in the Equipment other than that of a Lessee or contest the lessor s sole and exclusive ownership thereof. 6.6 As between the Lessor and the Lessee and their respective successors in title the Equipment shall remain personal property of and shall continue to be in the ownership of the Lessor. 8.2-1 The Lessor, shall without any notice be entitled to remove and repossess the Equipment and for that purpose by itself, its servants or agents enter upon any land, buildings or premises where the equipment is situated or is reasonable believed by the Lessor to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sick industrial unit. Proceedings are pending before the BIFR. In these circumstances defendant contends that suit for recovery of money would be barred in terms of section 22(1) of the Sick Industrial Companies (Special Provisions) Act, 1985, without the leave of the BIFR. 6. The defendant in the written statement filed admits that a sum of Rs.46.34 lakhs had been disbursed by the plaintiff. The defendant also avers that on account of recession in the automobile industry, glass manufactured by it could not be sold and inventory started piling up. Ultimately the glass manufactured had to be destroyed. The Financial condition of the defendant deteriorated and per-force the defendant approached the BIFR on 29-1-2001 and reference was regi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion and restructuring was under consideration and the defendant be granted some time for the new promoter to make an alternative proposal, for settlement of the dues including that of the plaintiffs and prayed in the alternative that the present suit should be deferred. Mr. Jagdeep Kishore, learned counsel for the plaintiff opposes this request submitting that the default has been continued over a period of time since September, 2000. Mr. Jagdeep Kishore with regard to the objections raised on the maintain- ability of the suit submitted that the whole plea of the defendant pro- ceeded on the assumption that the property and assets in question were that of the defendant. In the instant case the ownership and title and the property belonged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd ownership vested with the petitioner. 9. Again in Space Capital Service v. Prakash Industrial Ltd. [2000] 101 Comp. Cas. 437 1 (Delhi), the above position was reiterated and it was held that provisions of section 22 of the SICA would not apply as they in terms apply only to properties belonging to the Company and not those leased to it and there was no bar to appointment of a receiver to take possession of the leased equipment. The Court also rejected the argument that the equipment having been affixed to the ground was liable to be treated as immovable property. It held that the appointment of receiver to secure the leased equipment could not be resisted and the receiver could take possession of the leased equipment. 10. Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the same applies to only the properties and assets which belong to the Company in respect of which proceedings under the SICA are pending. 13. In view of the admissions of the defendant contained in the written statement regarding disbursement of the amount by the plaintiff for the lease finance and default in payment as noted in para 5 above, and the legal objections to the maintainability of the suit having been found to be not sustainable, the plaintiff is entitled to a decree on admissions. I.A. No. 10326/2002 is, accordingly, allowed. Accordingly by a decree of mandatory injunction, the defendant is directed to hand over possession of the Diesel Generating Sets as detailed in Annexure-A to the plaint. The suit is decreed with cos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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