1. This appeal is directed against the order passed by the learned Company Judge on 13th July, 2005 in Company Petition No. 5 of 2003, which was a petition under Sections 433 and 434 of the Indian Companies Act, 1956, filed by Damodar Valley Corporation (hereinafter referred to as "D.V.C."} for winding up of the appellant Company Akshaya Technologies Private Limited, Jharkhand.

2. Admittedly, the appellant Company had obtained supply of electricity from D.V.C. and had defaulted in payment of its dues which was quantified by D.V.C. as Rs. 3,37,004.06 on account of bills and a further sum of Rs. 2,59,65,004/- on account of Delayed Payment Surcharge and additional interest at the rate of two per cent per month.

3. In the winding up petition, it was mentioned that although the appellant Company agreed to pay the outstanding dues in twenty instalments, after payment of some of the instalments, it discontinued the payment of the other instalments, as a result whereof, D.V.C. was compelled to file the winding up petition.

4. The matter was contested on behalf of the appellant Company before the learned Company Judge mainly on account of the provisions of the Sick Industrial Companies (Special Provisions) Act, 1985 and in particular Section 22 thereof.

5. It was contended on behalf of the appellant Company that a reference had been made to the Board for Industrial and Financial Reconstruction (hereinafter referred to as "B.I.F.R.") under Section 15 of the aforesaid Act and that the same had been dismissed. Thereafter, an appeal was preferred by the appellant Company under Section 25 of the above Act before the Appellate Authority for Industrial and Financial Reconstruction (hereinafter referred to as "A.A.I.F.R."). It was contended that having regard to the pendency of the appeal and the provisions of Section 22 of the aforesaid Act, the proceeding before the learned Company Judge for winding up of the appellant Company was not maintainable. The learned Company Judge, upon consideration of the submissions made on behalf of the respective parties and the stand taken on behalf of the appellant Company that it had already been revived and the decision of the Honble Supreme Court in the case of Indian Maize & Chemicals Limited v. State of U.P., , came to the conclusion that since the appellant Company had accepted the default, it was liable to comply with the undertaking given by it notwithstanding the fact that the matter was pending before the A.A.I.F.R. On the basis of the said conclusion, the learned Single Judge directed publication of notice in two National Newspapers and, it is against such order and direction, that the instant appeal has been preferred by the appellant Company.

6. Appearing in support of the appeal, Mr. A.K. Jain, learned Advocate, reiterated the statements made before the learned Single Judge with regard to the express provisions of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985. Mr. Jain contended that having regard to the said provisions contained in the Statute itself, the learned Single Judge erred in law in continuing with the winding up proceeding and directing publication in the Newspapers. For the sake of reference, the provisions of Section 22(1) of the above Act, which are relevant for our purpose, are set out hereinbelow :-

"22(1). 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 (1 of 1956), or any other law or the memorandum and articles of association of the Industrial Company or any other instrument having effect under the said Act or other law, no proceedings for the winding up of the Industrial Company or for execution, distress or the like against any of the prope