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TMI Blog2004 (10) TMI 339X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. In support of the argument learned counsel further urged that as per the provisions of section 22(1) of the Sick Industrial Companies Act, 1985 (hereinafter referred to as the Sick Companies Act) no proceedings for the winding up of the sick industrial company or for execution, distress or the like against any of the properties of the Industrial Company can be taken where an enquiry under section 16 is pending or any Scheme referred to under section 17 is under preparation or consideration or a sanctioned Scheme is under implementation. 3. Reliance has also been placed upon the case of Rishabh Agro Industries Ltd. v. P.N.B. Capital Services Ltd. [2000] 25 SCL 461 (SC) wherein the question involved before the Apex Court was as to whether in a case wherein winding up orders have been passed, further action can be taken in pursuance of the said order in view of the provisions of section 22 of the Act. Hon ble Supreme Court in the aforesaid case, has observed as under:-- "It is true that for invoking the applicability of section 22 it has to be established that an inquiry under section 16 is pending or any scheme referred to under section 17 is under preparation or a sanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they were depositing certain amount of instalment as per the interim orders. Not only this, with respect to the arrears, the petitioner Industry kept on making payment in instalment as agreed even after the order was passed by BIFR in year 1991 but after 3-3-1993 they stopped making payment of the instalments, the submission therefore, is that the petitioner Industry being under an obligation to make the payment of electric charges (including minimum consumption guarantee charges) under an agreement which agreement has not been suspended cannot take the shelter of the provisions of section 22(1) for not making the payment which has become due under the agreement and also for the instalments which they agreed to pay and were being paid even after the passing of the orders of the BIFR. 5. The other plea is that so far as the amount which had accrued after passing of the order by the BIFR they cannot take any objection for the payment of the same and even if it is taken as correct that from some point of time the petitioner Industry was not functioning and, therefore, the electricity was not being consumed, liability of the petitioner Company for making payment of minimum consumpt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat behalf. So, it is not entitled to seek any declaration or direction from the Court that since the matter is pending before the BIFR he would be entitled to the supply of electrical energy without the compliance of the corresponding obligation of payment under regulations or of the contract under the Indian Electricity (Supply) Act, 1948. It is, therefore, not correct to say that since the proceedings are pending before the BIFR, the electricity is required to be supplied to the consumer without compliance of the conditions. It is then sought to be contended that the authorities may take coercive steps to recover the arrears. At this stage, we need not go into the question." 7. Learned counsel for the petitioner vehemently urges that the arrears of the electricity dues in any case cannot be recovered unless permission under section 22 of the Sick Industries Act is taken from the Board in view of the dictum of the aforesaid judgment whereas counsel for respondents Sri Abhishek Sinha has tried to persuade that the obligation under the contract has to be fulfilled by the Industry which obligation has been kept intact and has not been disturbed even by the Apex Court in the afor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in force, to which such industrial company is a party or which may be applicable to such Sick Industrial Company immediately before the date of passing of order by the BIFR. 12. Section 22(3) of the Sick Industrial Companies (Special Provisions) Act, 1985 reads as under: "22(3). Where an inquiry under section 16 is pending or any scheme referred to in section 17 is under preparation or during the period of consideration of any scheme under section 18 or where any such scheme is sanctioned thereunder, for due implementation of the scheme, the Board may by order declare with respect to the sick industrial company concerned that the operation of all or any of the contracts, assurances of property, agreements, settlements, awards, standing orders or other instruments in force, to which such sick industrial company is a party or which may be applicable to such sick industrial company immediately before the date of such order, shall remain suspended to that all or any of the rights, privileges, obligations and liabilities accruing or arising thereunder before the said date, shall remain suspended or shall be enforceable with such adaptations and in such manner as may be specified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of a sick industrial company while the said matters were pending before the Board or the Appellate Authority by enabling a sick industrial company to continue to incur further liabilities during this period. This would be the consequence if sub-section (1) of Section 22 is construed to bring about suspension of proceedings for eviction instituted by landlord against a sick industrial company which has ceased to enjoy the protection of the relevant rent law on account of default in payment of rent. It would also mean that the landlord of such a company must continue to suffer a loss by permitting the tenant (sick industrial company) to occupy the premises even though it is not in a position to pay the rent. Such an intention cannot be imputed to Parliament...." (p. 1445) In the case SRF Ltd. v. Garware Plastics and Polyesters Ltd. AIR 1995 SC 2228 Hon ble Supreme Court observed as under: "The legislative intent which, therefore, becomes clear is that sick or potentially sick industry should be detected timely. Proceedings for revival and rehabilitation of the sick or potentially sick company should expeditiously be completed within the time frame and if unavoidable, it sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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