Valmiki J. Mehta, J (Oral):--

C.M. No. 20066/2013 (exemption)

1. Exemption allowed subject to just exceptions.

C.M. stands disposed of.

C.M.(M) No. 1349/2013 and C.M. No. 20065/2013 (stay)

2. This petition under Article 227 of the Constitution of India is filed by the petitioner-company impugning the order of the trial court dated 6.8.2013 by which the trial court has dismissed an application filed by the petitioner under Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 (SICA).

3. A reading of the impugned order shows that earlier also an application under Section 22 of SICA was filed and the same was dismissed. The subject application was moved at the stage of final arguments again relying on Section 22 of SICA. Trial court in the impugned order also records that in spite of repeated directions to the petitioner/defendant, no document was filed to show that the debt of the respondent/plaintiff was included in the scheme of rehabilitation of the petitioner-company.

4. In any case, now the issue that a simple suit for recovery of moneys is not barred by Section 22 of SICA is clear from the judgment of the Supreme Court in the case of Raheja Universal Limited v. NRC Limited and Ors. (2012) 4 SCC 148. I have had an occasion to apply the ratio of this judgment of the Supreme Court in the case of Apollo International Ltd. v. Supriya Pharmaceuticals Ltd. 195 (2012)) DLT 288 and paras 2 to 5 of the judgment in the case of Apollo International Ltd. (supra) read as under:-

“2. The law is now however settled by a Division Bench judgment of three Judges of the Supreme Court in the case of Raheja Universal Limited v. NRC Limited and Ors. (2012) 4 SCC 148. Paras 55, 58 and 77 to 81 of the said judgment are relevant and the same read as under:-

“55. Despite these judgments and with an intention to clarify the law, we would state that the matters which are connected with the sanctioning and implementation of the scheme right from the date on which it is presented or the date from which the scheme is made effective, whichever is earlier, would be the matters which squarely fall within the ambit and scope of Section 22 of the Act of 1989 subject to their satisfying the ingredients stated under that provision. This would include the proceedings before the civil court, revenue authorities and/or any other competent forum in the form of execution or distress in relation to recovery of amount by sale or otherwise of the assets of the sick industrial company. It is difficult for us to hold that merely because a demand by a creditor had not been made a part of the scheme, pre or post-sanctioning of the same for that reason alone, it would fall outside the ambit of protection of Section 22 of the Act of 1985.

58. Section 22 is the reservoir of the statutory powers empowering the BIFR to determine a scheme, right from its presentation till its complete implementation in accordance with law, free of interjections and interference from other judicial processes. Section 22(1) deals with the execution, distress or the like proceedings against the company's properties, including appointment of a Receiver. It also specifically provides that even a winding up petition would not be instituted and no other proceedings shall lie or proceed further, except with the consent of the BIFR.

77. Section 22 of the Act of 1985 is very significant and of wide ramifications and application. More often than not, the jurisdiction of the BIFR is being invoked, necessitated by varied actions of third parties against the sick industrial company. The proceedings, taken by way of execution, distress or the like, may have the effect of destabilizing the finalization and/or implementation of the scheme of revival under consideration of the BIFR. It appears that, the Legislature intended to ensure that no impediments are created to obstruct the finalization of the scheme by the specialized body. To protect the industrial growth and to ensure revival, this preventive

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