The inclusion of claimed dues in the scheme laid before the BIFR is necessary for the application of the bar under Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985.

KAILASH GAMBHIR, J.

1. By this appeal filed under Section 96 of the Code of Civil Procedure, 1908 the appellant seeks to challenge the judgment and decree dated 3rd February, 2005 passed by the Court of learned Additional District Judge, Tis Hazari Courts Delhi whereby decreing the suit for recovery of Rs. 5,20,529/-filed by the respondent under Order XXXVII of CPC was decreed in favour of the respondent and against the appellant.

2. The main grievance raised by the appellant in the present appeal is that the recovery suit filed by the respondent was barred by the provisions of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to as SICA) as no permission was sought by them under Section 22(1) of the Act before filing the said recovery suit. It is also the case of the appellant that in the leave to defend application filed by the appellant in response to the summons for judgment issued by the learned Trial Court in the said summary suit, one of the main objections, besides others, was that the appellant company was registered with the BIFR at serial No. 389/99 and, therefore, the said proceedings of the summary suit were liable to be stayed in terms of Section 22 of Sick Industrial Companies (Special Provisions) Act, 1985. It is further the case of the appellant that on 11.6.2002, BIFR had rejected the reference made by the appellant company and against the said order, the appellant had filed an appeal (appeal No. 200/2002) but despite the fact that the appellant had placed on record the entire record of the said appeal before the learned Trial Court, yet the learned Trial Court ignored the pendency of the appeal before AAIFR and wrongly dismissed the leave to defend application preferred by the appellant, ultimately decreeing the summary suit filed by the respondent.

3. Arguing for the appellant, Mr. Anil Grover, learned counsel submitted that the learned Trial Judge had ignored the mandate of Section 22 of Sick Industrial Companies (Special Provisions) Act, 1985, which clearly provides that 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 no suit for recovery of money would lie against such a company. Counsel also submitted that if the jurisdiction of the civil Court was ousted in terms of the provisions of Section 22 of the said Act, then, any judgment rendered by it would be coram non judice. The contention raised by the counsel for the appellant was that the said judgment and decree dated 3.2.2005 under challenge in the present appeal is a nullity as the learned Trial Court lacked the inherent jurisdiction to try and entertain the said suit in the absence of the said mandatory permission granted under Section

22. Counsel also submitted that once registration is made under Section 15 of Sick Industrial Companies (Special Provisions) Act, 1985 then the provisions of Section 22 will immediately come into play and the position will not be different where even the appeal filed by such company is pending consideration under Section 25 of the said Act before AAIFR. Counsel also submitted that in fact on 1.12.2005, AAIFR had allowed the appeal No. 200/2002 filed by the appellant and gave direction to BIFR for fresh consideration of the reference No. 389/99 along with two subsequent references filed by the appellant company. Counsel further submitted that BIFR had declared the appellant company as sick industrial company in terms of Section 3(1)(o) of SICA vide order dated 19.4.2006. Counsel also submitted that during the pendency of the present appeal, the respondent had approached BIFR to seek permission for the execution of the impugned judgment and d