RFA No. 788/2005 Page 1 of 22

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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RFA No. 788/2005 and CM No. 16225/2005 and 3419/2009

Judgment delivered on: 16.04.2012

M/s Haryana Steel & Alloys Ltd.

..... Appellant

Through:

Mr. Anil Grover, Adv.

versus

M/s Transport Corporation of India

..... Respondent

Through:

Mr. T.A. Francis, Adv.

CORAM:

HON'BLE MR. JUSTICE KAILASH GAMBHIR

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 3^rd 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.

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RFA No. 788/2005 Page 2 of 22

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

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RFA No. 788/2005 Page 3 of 22

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

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RFA No. 788/2005 Page 4 of 22

present appeal is a nullity as the learned Trial Court lacked th