ORDER: The defendant-Company in O.S.No.3613 of 2001 on the file of 13th Assistant, City Civil Court, Chennai, having failed in its attempt to stay the further proceedings of the suit till the disposal of the case No.151 of 1998 pending before the Board for Industrial and Financial Reconstruction (for short ‘B.I.F.R.‘), New Delhi, has come to this Court for the same relief.

2. The respondent in this revision, as plaintiff, moved the trial Court for the recovery of a sum of Rs.2,02,363 with interest thereon at the rate of 24% per annum from the date of the plaint till the date of realisation, from the revision petitioner contending that they have engaged the service of the plaintiff/company for the purchase of air travel tickets as well as for obtaining visa, etc., but failed to pay the sum despite repeated demands.

3. The revision petitioner/defendant, before filing the written statement in this case, had filed a petition under Sec.22 of the Sick Industrial Companies (Special Provisions) Act, 1985 (for short SIC (SP) Act, 1985) for the stay of all further proceedings in the suit on the ground that the company had filed a petition before the B.I.F.R., which has been numbered as 151 of 1998 and till such time, the proceedings should be postponed, since all the matters have to be decided only in that proceedings. The application for stay was opposed by the respondent/plaintiff, contending that they have not received any notice from the Board, that it is not clear whether the petition said to have been filed before the B.I.F.R. is still pending or not, in view of the fact that it was not disclosed by the defendant when pre-suit notice was issued by the plaintiff demanding the amount.

4. The learned trial Judge, upon the consideration of the rival claims of the parties, came to the conclusion that the revision petitioner failed to establish the pendency of the proceedings before the B.I.F.R., that even before the filing of the suit, when a notice was issued, there was no whisper and under these circumstances, the stay sought for the further proceedings of the suit is not at all sustainable. Thus concluding, the petition for stay came to be dismissed on 5.9.2003, which is under challenge in this revision.

5. Heard the learned counsel for the revision petitioner, Mr.Srinath Sridevan. No appearance on behalf of the respondent, despite service of notice.

6. The learned counsel, Mr.Srinath Sridevan submits that the revision petitioner-company has become a sick industrial company resulting a reference before the B.I.F.R. and when the matter is pending before the Board, no suit for the recovery of money against the sick industrial company shall lie. But unfortunately, without considering the mandatory provisions of SIC (SP) Act, 1985, the learned trial Judge dismissed the application, which deserves setting aside.

7. The learned trial Judge has observed that the defendant/revision petitioner has failed to inform the pendency of proceedings before B.I.F.R. when he had issued notice and that the petitioner-company has not produced any document also to prove that the proceedings are actually pending before the Board. When a petition is filed supported by an affidavit giving the case number also, it is not challenged specifically, except evasive denial, that too on the ground that the plaintiff had not received any notice from the Board. As submitted by the learned counsel, upon reference, an operating agency was also nominated and the scheme is under way to settle all the claims. In support of the above contention, an affidavit is also filed before this Court by the Company Secretary stating that the reference, viz., Case No.151 of 1998, is still pending and the operating agency appointed by the B.I.F.R. is ICICI Bank, who is taking all the necessary steps in order to evolve a scheme and the last hearing also took place on 14.2.2004. I find no reason to ignore the affidavit filed by the Company Secretary. Considering the evasive denial in the count

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