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TMI Blog2008 (11) TMI 405X X X X Extracts X X X X X X X X Extracts X X X X ..... etter dated September 5, 2006 (annexure P11), notice dated August 20, 2007 (annexure P14) and also letter dated January 4, 2008 (annexure P17) and a direction to accept payment by way of one-time settlement in terms of one-time settlement scheme dated March 4, 2004 (annexure P4). 2. The case set out in the petition is that the petitioner took loans from the Punjab State Industrial Development Corporation (PSIDC) and Punjab Financial Corporation (PFC) apart from the Oriental Bank of Commerce (OBC). The petitioner made a reference to the Board for Industrial and Financial Reconstruction (BIFR) for declaring the petitioner a sick industrial company in terms of the Sick Industrial Companies (Special Provisions), Act, 1985 ("the SICA"). On June 23, 1997, the petitioner was declared a sick industrial company. The rehabilitation scheme was prepared, but ultimately vide order dated December 18, 2002, the BIFR recommended winding up of the petitioner-company. Against the said order, appeal was pending before the Appellate Authority for Industrial Financial and Reconstruction (AAIFR). In the meanwhile, the impugned notice under section 13(2) of the Securitisation and Reconstruction of Fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CA and will not be barred under section 22 of the SICA. 9. We may have a look at the statutory scheme of the SICA and the Securitisation Act. 10. The SICA was enacted to secure timely detection of sick companies and taking remedial measures to rehabilitate such companies. Section 22 of the SICA provides for suspension of legal proceedings against the companies during pendency of inquiry, operation of scheme or during pendency of the appeal and bars proceedings for winding up and for execution, distress or like against any properties of the company except with the permission of the appropriate authority. Section 32 of the SICA contains a non obstante clause. 11. Parliament has passed the Sick Industrial Companies (Special Provisions) Repeal Act, 2003. The same has to come into force on the date specified in the notification of the Central Government which has not yet been issued. The reason for repeal appears to be that there was wide spread misuse of the provisions of the SICA against payment of dues merely by making a reference and keeping the proceedings pending for a long period. 12. Reference may also be made to the Securitsation Act, which was enacted to help b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me, the latter provides for summary taking over of assets of a defaulting debtor even without reference to the court. The provisions of the Securitisation Act have been upheld by the hon'ble Supreme Court in Mardia Chemicals Ltd. v. Union of India [2004] 120 Comp Cas 373 ; [2004] 4 SCC 311. 14. Learned counsel for the respondents relies on judgment of this court in Triveni Yarns Ltd. [2010] 154 Comp Cas 635 , while learned counsel for the petitioner relies on contra view taken by the Orissa High Court in Noble Aqua P. Ltd. v. State Bank of India AIR 2008 Orissa 103 ; [2009] 148 Comp Cas 817. We are in agreement with the view already taken by this court in Triveni Yarns Ltd. [2010] 154 Comp Cas 635 , in view of provisions of section 35, even if, we do not refer to the provisions of section 41 of the Securitisation Act, which is not only a latter Act, its clear intention is to override SICA in case of conflict. 15. We find from the judgment of the hon'ble Orissa High Court in Noble Aqua P. Ltd. AIR 2008 Orissa 103 ; [2009] 148 Comp Cas 817, that no reference has been made therein to section 35 of the Securitisation Act. Reference has been made to sections 37 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yments to Small Scale and Ancillary Industrial Undertakings Act, 1993, (SSAIU Act). It was held that the SICA will prevail even though SSAIU Act was a later Act. The SSAIU Act, provided for regulating payment of interest on delayed payments to Small Scale and Ancillary Industries. Both the Acts operated in different fields and there was in fact no question of inconsistency. 20. In Sultana Begum's case [1997] 1 SCC 373, it was observed that while interpreting two inconsistent laws, the court should make an effort to harmonise them. 21. In Shamrao's case AIR 1952 SC 324, it was observed that when a subsequent Act amends an earlier one, the amended Act must be given effect to. 22. In Sanwarmal Kejriwal's case [1990] 2 SCC 288, it was observed that when jurisdiction was vested in two different courts, the court having jurisdiction under special law among the two will prevail to exclude the other, even if the special law was earlier in time. 23. In Fuerst Day Lawson Ltd.'s case AIR 2001 SC 2293, it was observed that violation of award given after the enactment of the Arbitration and Conciliation Act, 1996, will be governed by the said Act, even if arbitration pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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