IMPORTANT POINT
Company having surplus fund is not a sick company.

Judgment :

Ranjan Gogoi, J.

Leave granted.

2. The common challenge in these appeals is against the judgment and order dated 19.10.2012 passed by a Division Bench of the High Court of Calcutta holding that the provisions of the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter for short “SICA”) are applicable to the “foreign companies” registered in India under the provisions of Section 591 of the Companies Act, 1956 (hereinafter for short “the Act”) and, therefore, the revival scheme framed by the Board for Industrial and Financial Reconstruction (hereinafter referred to as “BIFR”) in respect of the Baranagore Jute Factory Plc. (hereinafter for short ‘the Respondent Company’) is required to be implemented. Though the question raised in these appeals is short and precise, as noticed above, learned counsels for the parties have raised various issues and contentions which, in no way, appear to be even remotely connected with the question of law that arises from the order of the High Court. We would, therefore, like to make it clear at the outset that in spite of the strenuous efforts on the part of the learned counsels for the parties to persuade us to go into the said questions we have considered it wholly unnecessary to do so for reasons indicated hereinafter. Instead, we must deal with what strictly arises for our answer in the present appeals leaving the parties to avail of such remedies as may be open to them in law in respect of all other grievances raised.

3. We may now take note of a few relevant facts. The Respondent Company was wound up by an order dated 28.10.1987 of the learned Company Judge of the Calcutta High Court. The appeal filed against the winding up order by some of the workers of the Company came to be dismissed by the Appellate Bench of the High Court on 18.11.1987. Thereafter, on an approach being made, the winding up proceedings were stayed for a period of six months on 22.9.1988 and a scheme for revival of the Company suggested by some of the shareholders was accepted by the learned Company Judge. Our perusal of the relevant facts and the voluminous pleadings brought on record would seem to suggest that the initial order of stay of the winding up dated 22.9.1988 has been extended from time to time and till the present date different schemes for running the affairs of the Respondent Company has been framed and implemented pursuant whereto the Company has been functioning as a going concern. We also deem it necessary to put on record that it has been contended before us that several applications registered and numbered as C.A. No. 126/2005, C.A. No. 302/2005, C.A. No. 303/2005, C.A.No.370/2009, C.A.No.957/2010 for a permanent stay of the winding up proceedings have been filed before the Calcutta High Court and the same are presently pending. The above plea has been urged notwithstanding the observations of this Court in Radheshyam Ajitsaria & Anr. v. Bengal Chatkal Mazdoor Union & Ors. [(2006) 11 SCC 771] to the effect that in permanent stay of the winding up proceedings in respect of the Respondent Company had been granted by the High Court.

4. From the pleadings of the parties placed before us it appears that the Respondent Company is the owner of vast immovable properties in and around Kolkata which, with the passage of time, have enormously appreciated in value. It is this particular asset of the Respondent Company which has been the bone of contention between different groups of shareholders who have claimed the right to run the affairs of the Company under the schemes framed by the learned Company Judge from time to time. The action of one group of shareholders purportedly to the disadvantage of another and the acquisition of majority share holding by one such group to the detriment of the other by enlarging the equity base of the Respondent Company has been the bone of contention giving rise to serious contentious issues, which issues, as indicated earlier, we are not inclined t