( 1 ) THE short point for consideration is whether the petitioner can ask for appointment of a Receiver regarding the property of a Company against which reference has been registered by the Board for Industrial and Financial Reconstruction (in short BIFR ).

( 2 ) THE petitioner has based its claim for the appointment of a Receiver primarily on the ground that respondent Company approached the petitioner to help it financially in obtaining plant and machinery on lease basis. Respondent Company represented itself to be financially sound and assured the petitioner that it would be able to meet its commitments. It pursuaded the petitioner to agree to get on lease the plant and machinery which the respondent wanted to purchase. However, subsequently it was agreed between the parties that the plant and machinery would be hired by the petitioner for the respondent. In this regard Hire Purchase Agreement was executed between the parties. Term of the agreement indicated the owner of the plant and machinery, respondent company as the Hirer and the Managing Director of the respondent company as the guarantor. This Hire Purchase Agreement was executed on 15th April,1996. The period of this agreement was 36 months expiring in the month of March,1999. Pursuance to this agreement, the petitioner hired an Automatic Hardshell Gelatine Capsule Making Machine to the respondent company. The possession of the machinery was only handed over to the respondent but the title in the machinery remained with the petitioner. It was also the term of that agreement that in case hire charges as envisaged in the Agreement are not paid by the respondent company or it defaulted in adhering to the terms of the Agreement, the petitioner would cancel the contract and take back its machinery. Respondent Company, according to petitioner committed default in paying the hire charges and has not adhered to the terms of the contract. Petitioner demanded its machinery back which the respondent has failed to do. There is, thus, apprehension in the mind of the petitioner that the respondent might fritter away the machinery which was hired by the respondent and placed at the premises of the respondent. The ownership of the machinery still vests with the petitioner.

( 3 ) THAT since the respondent company consistently defaulted in making payment of the hire charges and even the cheques issued by the respondent company had been dishonoured, hence petitioner lodged complaint against the respondent company under Section 138 of the Negotiable Instruments Act. Thus an amount of Rs. 74,56,354. 04 paise as on 13th May,1998 is due from the respondent company to the petitioner. The respondent company has neither paid the hire charges nor handed back possession of the machinery in question. Since the title of this machinery vests with the petitioner, hence the request for appointment of Receiver in order to safeguard the machinery from respondent as well as from being wasted.

( 4 ) THIS application has been contested by the respondent, inter alia, on the ground that respondent is a sick industrial company under the provisions of Sick Industrial Companies (Special Provisions) Act,1985 (in short SICA) and the reference against the respondent company having been registered as BIFR Case No. 115/98, this application is not maintainable. Under the provisions of Section 22 (1) of SICA neither any application for winding up nor any coercive application is maintainable. If Receiver is appointed it would adversely effect the financial status of the respondent and would be a hurdle in its revival. Respondent is protected under Section 22 (1) of SICA.

( 5 ) I have heard Ms. Anjali Sharma for the petitioner and Mr. Alok Dhir for the respondent. It is an admitted fact on record that respondent is a sick industrial company registered with BIFR as Case No. 115/98. It is also a fact that the respondent entered into an Hire Purchase Agreement with the petitioner. Though respondent in hi