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TMI Blog2018 (1) TMI 1180X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Canara Bank is directed to pay an amount of ₹ 20,000/- as initial expenses to the Official Liquidator within a period of three weeks from the date of receipt of a copy of this judgment. Since the Canara Bank was the monitoring agency appointed by the BIFR, it is also ordered that the Canara Bank will ensure that the winding up order is published in one issue of all Kerala editions of Kerala Kaumudi Malayalam Daily as well as in one issue of all Kerala editions and Madurai edition of the New Indian Express English Daily. The winding up order shall be drawn in Form No.52 of the Companies (Court) Rules 1959. Registry shall forward certified copies of this judgment as well as Form No.52 winding up order to the Registrar of Companies (Kerala) as well as to the Official Liquidator attached to this Court. - CP NO. 30 OF 2006, CA NOS. 718, 840 OF 2007, 369 And 501 of 2014 - - - Dated:- 2-11-2017 - MR. ALEXANDER THOMAS, J. JUDGMENT CP No.30 of 2006 1. The aforecaptioned Company Petition has been initiated by this Court, pursuant to a reference by the Board for Industrial and Financial Reconstruction (BIFR) recommending winding up of the Company in question, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the last review hearing held on 31.05.2006, the BIFR noted that the company and the promoter are neither serious enough nor resourceful enough to revive the company on a long term basis. The BIFR also observed that the Company s operations remain suspended for the previous three years even after sanctioning of the scheme for the revival of the Company. Accordingly, the BIFR declared the scheme, namely SS-98/MS-2000, as failed and formed a prima facie opinion that it would be just and equitable and in the public interest that the Company should be wound up under Section 20(1) of the SICA. Accordingly, winding up notice was issued, fixing the date of mandatory hearing as 22.8.2006 for hearing objections/suggestions to the winding up notice. Later the date of hearing was changed from 22.8.2006 to 30.8.2006. On 30.8.2006, after hearing the Company and the secured creditors, the Board opined that the Company should be wound up. Accordingly, the opinion has been referred to this Court under Section 20(1) of the above Act and the reference has been numbered as the captioned Company Petition. On 01.11.2006, this Court has issued notice to the 1st respondent Company and to the Canara Bank, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter dated 17.04.2007 produced along with CA No.328/2007, which is said to be against the spirit of the decision of the meeting held on 26.8.2006. However, the KSEB had not attended the meeting held on 26.8.2006, as can be seen from the minutes. The 8th respondent - KSEB filed objection dated 17.11.2007 to the prayer in Company Application No.328 of 2007 stating that the KSEB had agreed to waive the minimum due charges amounting to ₹ 35,33,116/- (from April, 2002 to February, 2006) on the condition that the Company shall clear the arrears of ₹ 1,02,76,993/- and shall also open the unit on or before 31.03.2006. Since the Company had not complied with the said condition, the KSEB sought for dismissal of Company Application No.328/2007. The 1st respondent filed reply affidavit dated 20.11.2007 in Company application No.328/2007 stating that the minutes dated 26.8.2006 is binding on it for the reason that the Secretary of the Government has chaired the meeting. It was also pointed out that inspite of the issuance of the request of the KSIDC, the KSEB has not yet given the concession. The 1st respondent further submitted that the offer given by the KSEB is not a workable one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid Sri. Hari was appointed as the Managing Director and accordingly a new Board was constituted. Annexure R1(b) is the intimation given to the ROC regarding the aforesaid appointment of Sri. Hari as the Managing Director of the Company. It is on this basis that the 1st respondent had sought permission for revival of the Company as per Annexure R1(n) revival scheme. Thereafter, the 1st respondent had filed CA No.369/2014 in CA No.840/2007 in the above company petition. The 1st respondent stated that the name of the Company has been changed to M/s. Jwala Containers Ltd. . Thereafter the 1st respondent had produced Annexure R1(aa) file noting to show that the Government is considering the case of the company for providing Sales Tax exemption. Accordingly, the 1st respondent prayed for a stay of Annexure R1(z) demand notice dated 19.6.2014 issued by the Deputy Tahsildar, Thiruvananthapuram for and on behalf of the KSIDC. The KSIDC filed statement dated 21.11.2014 in the above company application. The KSIDC has submitted that an amount of ₹ 10,91,15,536/- together with interest is due from the company and also had asserted the finding of the BIFR against the Company. In co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v) To direct the Registrar of Companies, Ernakulam to accept 25% of the amount due towards fees in connection with the increasing of authorised Capital as agreed before the BIFR as per letter dated 25.7.2000. (v) To direct the 7th respondent to defer further action to realise the amount due towards Provident Fund for a period of one year from the date of reconnection of electricity. 8. In the affidavit of the 1st respondent dated 10.01.2009, that accompanied the above CA No.21/2009, it is averred that a meeting was conducted to resolve the disputes between the large scale power consumers and KSEB. In that regard, the 1st respondent had placed Annexure-A1 minutes and that as agreed in Annexure-A1 minutes, the 1st respondent will deposit the agreed ₹ 21 lakhs as and when the same is demanded by the KSEB. As per order dated 20.01.2009, this Court directed the 1st respondent (petitioner in CA No.21/2008) to deposit an amount of ₹ 21,42,000/- on or before 31.01.2009 with KSEB pursuant to Annexure-A1 without waiting for any further demand being made. Since the 1st respondent did not deposit the abovesaid amount, this Court passed order dated 03.02.2009 dismissing CA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis of the opinion of the Board, order winding up of the sick industrial company and may proceed and cause to proceed with the winding up of the sick industrial company in accordance with the provisions of the Companies Act, 1956 (1 of 1956). 14. It is also relevant to note that the SICA has now been repealed as per the Sick Industrial Companies (Special Provisions) Repeal Act, 2003. Section 1(2) of the Sick Industrial Companies (Special Provisions) Repeal Act, 2003 (Act 1 of 2004) provides that the said Act shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. 15. Section 5 of the said Act 1 of 2004 dealing with savings, provides as follows:- 5. Saving.-(1) The repeal by this Act of the repealed enactment shall not- (a) affect any other enactment in which the repealed enactment has been applied, incorporated or referred to; (b) affect the previous operation of the repealed enactment or anything duly done or suffered thereunder; (c) xxxx (d) affect any order made by the Board for sanction of the schemes; (e) xxxx (f) xxxx (g) xxxx (h) xxxx 16. Section 6(b) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) All petitions relating to winding up under clause (e) of Section 433 of the Act on the ground of inability to pay its debts pending before a High Court, and where the petition has not been served on the respondent as required under Rule 26 of the Companies (Court) Rules, 1959 shall be transferred to the Bench of the Tribunal established under sub-section (4) of Section 419 of the Act, exercising territorial jurisdiction and such petitions shall be treated as applications under Sections 7, 8 or 9 of the Code, as the case may be, and dealt with in accordance with Part II of the Code: Provided that the petitioner shall submit all information, other than information forming part of the records transferred in accordance with Rule 7, required for admission of the petition under Sections 7, 8 or 9 of the Code, as the case may be, including details of the proposed insolvency professional to the Tribunal within sixty days from date of this notification, failing which the petition shall abate. (2) All cases where opinion has been forwarded by Board for Industrial and Financial Reconstruction, for winding up of a company to a High Court and where no appeal is pending, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petition has not been served on the respondent. 18. Aharon Barak, eminent jurist and former President of the Supreme Court of Israel, in his illuminating treatise on, Purposive Interpretation In Law has opined regarding correcting mistakes in the language in the text and correcting mistakes in statutes, as follows: (see pages 77-78 thereof) 4.CORRECTING MISTAKES IN THE LANGUAGE OF A TEXT Is a Judge Authorized to Correct Mistakes in a Text? The author of a text is generally authorized to correct a mistake in it. The legislature may correct a mistake in a statute; the parties to a contract may correct a mistake in the formation of a contract; testators may correct their wills. May judges, however, correct mistakes in texts they did not write, like statutes, contracts, or wills? (64)* Answering in the affirmative is uncontroversial as long as judges are permitted to make the correction within the framework of the text s language, without having to add to it or subtract from it. Such activity is just ordinary interpretation, in which judges consider the correct reality surrounding the text, rather than the mistaken one. Of course, a given legal system may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contains a mistake. In any case, the damage done to reasonable expectations, if any exist, from correcting the mistake is no greater than the damage to reasonable expectations wreaked by any act of interpretation. With that in mind, we discuss correcting mistakes. Correcting Mistakes in Statutes The English legal tradition authorizes a judge to correct blatant errors in a text that has been enacted. The legislature is presumed to have wanted judges to correct blatant errors in statutes, particularly in order to realize its intent.(68)* As Lord Reid said: Cases where it has properly been held that a word can be struck out of a deed or statute and another substituted can as far as I am aware be grouped under three heads: where without such substitution the provision is unintelligible or absurd or totally unreasonable; where it is unworkable; and where it is totally irreconcilable with the pain intention shewn by the rest of the deed or statute [Federal Steam Navigation Co. Ltd. v. Department of Trade and Industry [1974] 2 All E.R. 97, 100. See also Western Bank Ltd. v. Schindler [1977] ch.1, 18.] American law adopts a similar approach (70)*. (64)* F.A.R. Ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is absolutely no necessity to mention about Rule 5(1) and it would have mentioned only about a composite Rule 5, without any sub rule thereof. Therefore, obviously the above said aspect is an anomaly in the drafting of the above said amended Rules. The matter could be examined from another important aspect that if, as a matter of fact, it is taken that the rule making authority has intended to delete altogether the text of Rule 5(2), then in such a situation, there is no provision for continuance of the pending proceedings before the High Court consequent to the BIFR recommendations, and it would go against the mandate of the plenary provision of law made in the Sick Industrial Companies (Special Provisions) Repeal Act, 2003 (Act 1 of 2004) whereby Section 5 thereof expressly says not only the previous operation of the repealed enactment but also anything duly done or suffered thereunder. It also goes against the aforementioned provisions of Section 465 of the Companies Act, 2013. Moreover, such an interpretation would also go against the spirit and substance of the provisions contained in clauses (b) and (c) of Section 6 of the General Clauses Act, 1897. Therefore, the only ..... X X X X Extracts X X X X X X X X Extracts X X X X
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