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TMI Blog2004 (4) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings. The contractor filed a dispute claiming Rs. 6,12,902.25 paise as unpaid price of bamboo transportation made during June to October 1996 and further claimed interest @ 24% per annum upto 30-4-1999 amounting to Rs. 3,98,356.85 paise, total Rs. 10,11,259.10 paise in addition to future interest and costs. The Nepa Limited denied the claim submitting inter alia that there was no breach of clause 5(1) and (2) of the contract so that the arbitration clause 15 was not attracted. There is no cause for arbitration. Transportation having been completed there was no occasion to refer the dispute to arbitrator. Unpaid price of transportation charges is recoverable by civil suit. Nepa Nagar Limited has been declared a sick industry and the enquiry under section 16/17 Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to as "SICA"), were pending before the Board for Industrial and Financial Reconstruction BIFR ) so that the arbitration proceedings cannot be continued being barred under section 22 of SICA. There was no stipulation to pay interest. 3. During the progress in proceedings on 1-11-1999, it was "admitted" between the parties that a balance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r on. 7. Shri N.S. Kale, learned Sr. Counsel appearing on behalf of the respondents submitted that the recovery of transportation charges of bamboo is not interdicted by section 22 of SICA as bamboo was transported for running of the factory. It is not a case of loan or advance. The aim and object of SICA is the financial reconstruction not to thwart the very activity of the industrial concern. What is necessary for running of the factory. Stay of recovery is not contemplated under section 22 of SICA. Thus, he has submitted that no interference is called for. 8. In order to appreciate rival submission it is necessary to consider ambit and scope and intendment of section 22 of SICA. Section 22 of SICA is quoted below : "22. Suspension of legal proceedings, contracts, etc. (1) Where in respect of an industrial company, an inquiry 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 or where an appeal under section 25 relating to an industrial company is pending then, notwithstanding anything contained in the Companies Act, 1956, or any other law or the memorandum and art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed seven years in the aggregate. (4) Any declaration made under sub-section (3) with respect to a sick industrial company shall have effect notwithstanding anything contained in the Companies Act, 1956 or any other law, the memorandum and articles of association of the company or any instrument having effect under the said Act or other law or any agreement or any decree or order of a Court, Tribunal, officer or other authority or of any submission, settlement or standing order and accordingly: ( a )any remedy for the enforcement of any right, privilege, obligation and liability suspended or modified by such declaration, and all proceedings relating thereto pending before any Court, Tribunal, officer or other authority shall remain stayed or be continued subject to such declaration; and ( b )on the declaration ceasing to have effect ( i )any right, privilege, obligation or liability so remaining suspended or modified, shall become revived and enforceable as if the declaration had never been made; and ( ii )any proceeding so remaining stayed shall be proceeded with subject to the provisions of any law which may then be in force, from the stage which had been reached when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect to the work done and services obtained by sick industrial company as such provision of section 22 of SICA is not attracted. 13. In Rishabh Agro Industries Ltd. v. P.N.B. Capital Services Ltd. [2000] 25 SCL 461 (SC), the Apex Court has observed that the object of section 22 is to afford the maximum protection of employment optimize the use of financial resources, salvaging the assets of production, realising the amounts due to the banks and to replace the existing time consuming and inadequate machinery by efficient machinery. The Apex Court has observed thus : "5. The Act is shown to have been made, in public interest, with a view to securing the timely detection of sick and potentially sick companies owning industrial undertakings, the speedy determination by a board of experts of the preventive, ameliorative, remedial and other measures which need to be taken with respect to such companies and the expeditious enforcement of the measures so determined and for matters connected therewith or incidental thereto. The object of the Act appears to be to afford maximum protection of employment, optimize the use of financial resources, salvaging the assets of production, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... garb of sickness or for any like difficulty may be allowed to shirk its liability to pay the wages to its workers for the work they have done. In our opinion the claim of the transportation charges which are in question in the instant cases stand on the same footing, as that is claimed for the work done, expenditure incurred in transportation of Bamboo which is necessary for running of industry itself. The Allahabad High Court has observed thus : "15. In my opinion the aforesaid reasoning adopted by Hon ble Supreme Court applies with full force to the facts of the present case also. The Parliament while putting section 22 of the Act 1985 could never have intended that the industrial unit under the garb of sickness or for any like difficulty may be allowed to shirk its liability to pay the wages to its workers for the work they have done. Thus proceedings under section 3 of the U.P. Act of 1978 will not be affected by section 22 of Act of 1985." 17. In Keshri Steels v. M.P. Electricity Board [1998] (2) MPLJ 535, this Court has held that under section 22 of SICA payment of arrears of electricity charges of M.P. Electricity Board for energy consumed is not barred, such a cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l has also pressed into service Order 7 Rule 2, Civil Procedure Code. What is meaning of money suit, there is no dispute with the proposition that it is a money claim. However, claim is not with respect to loan or advance. Thus, the bar created by section 22 of SICA is not attracted and consent of BIFR/appellate authority is not necessary as the case may be. Learned Senior Counsel has further placed reliance on a decision of Apex Court in The Gram Panchayat v. Shri Vallabh Glass Works Ltd. AIR 1990 SC 1017, it was a case of recovery of property tax wherein Apex Court held that the Gram Panchayat is not entitled to recover property tax and other amount due without the consent of Board. The decision is with respect to different kind of claim not for work done and is distinguishable, hence, is not attracted. 21. In Tata Davy Ltd. v. State of Orissa [1997] 14 SCL 81 (SC) which has been relied by learned Senior counsel for the appellant, recovery was of the sales tax dues under Orissa Sales Tax Act, 1947. Recovery of the said arrears was sought to be made by attachment of the appellants property. Apex Court held that arrears of sales tax could not be recovered from the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "proceedings", after the word "suit". The exclusion of such "omnibus expression" after the word "suit" must be given some weight in interpreting the word. The Apex Court has held thus : "20. There is an apparent distinction between the expressions "proceeding" and "suit" used in section 22(1). While it is true that two different words may be used in the same statute to convey the same meaning, that is the exception rather than the rule. The general rule is that when two different words are used by the same statute, prima facie one has to construe these different words as carrying different meanings. In Kanhaiyalal Vishindas Gidwani [2001] 1 SCC 78 this Court found that the words "subscribed" and "signed" had been used in the Representation of the People Act, 1951 interchangeably and, therefore, in that context the Court came to the conclusion that when the Legislature used the word "subscribed" it did not intend anything more than "signing". The words "suit" and "proceeding" have not been used interchangeably in SICA. Therefore, the reasons which persuaded this Court to give the same meaning to two different words in a statute cannot be applied here. 25. Having regard to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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