Madhya Pradesh High Court
M/S Garha Gears Limited Thru.Parmal ... vs Govinda Mundra on 15 May, 2018
1
HIGH COURT OF MADHYA PRADESH:
BENCH AT INDORE
W.P.No.2240/2016
(M/s Garha Gears Limited Vs. Govinda Mundra)
Indore, Dated: 15.05.2018
Shri P.S. Kushwah, learned counsel for the petitioner.
Shri Vishal Baheti, learned counsel for the respondent.
The petitioner has filed the present petition being aggrieved by the order dated 03.02.2016 passed by the 3 rd Additional District Judge, Dewas by which the warrant has been issued against the petitioner for recovery of the amount in pursuant to the order passed under the Interest on Delayed Payments to Small Scale and Ancillary Industrial Undertakings Act, 1993.
The respondent in order to recovery the amount of Rs.34,513/- and interest Rs.90,000/- under the Act approached the Industry Facilitation Council, Bhopal. The council has passed the award on 21.08.2002 in favour of the respondent and thereafter the same was amended vide order dated 26.03.2003. The petitioners had challenged the said award by way of application under Section 34 of the Arbitration and Conciliation Act, 1996 before the 10th Additional District Judge by order dated 23.04.2008. The application had been dismissed and award has attained finality. Thereafter, the respondent initiated an execution proceeding seeking recovery of amount under the decree dated 26.03.2003 before the civil Court.
After notice received by the executing Court the petitioner appeared and filed application under Section 151 of the CPC that the petitioner company had approached the Board 2 for financial reconstruction Delhi and vide order dated 13.10.2011 the Board has stayed all the operation of the petitioner company, therefore, as per the provisions of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 (SICA in short) matter cannot be proceeded without the leave of BIFR.
Learned executing Court vide order dated 03.02.2016 has rejected such condonation on the ground that Act of 1993 is a special Act and shall prevail over the SICA Act, hence, present petition before this Court.
Learned counsel for the petitioner has produced copy of order dated 09.09.2016 passed in W.P.No.2245/2016 (Ms. Gajra Bevel Gears Limited & Another Vs. Neeraj Gandhi) in which the similar order passed by the executing Court has been set aside. Copy of the order is reproduced below:
"Parties through their counsel. The petitioner before this court has filed this present petition being aggrieved by the order dated 03-02-2016 passed by the learned III Additional District Judge, Dewas in execution Case No. 3B/2007.
The contention of the learned counsel for the petitioner is that the aforesaid order has been passed, keeping in view the judgment delivered in the case of Jay Engineering Works Ltd. Vs. Industry Facilitation Council and another reported in 2005 (2) JLJ 9.
Learned counsel for the petitioner has argued before this court that the judgment delivered in the case of Jay Engineering Works Ltd. (supra) has been set-aside by the Hon'ble Supreme Court ie Jay Engineering Works Ltd. Vs. Industry Facilitation Council and Another reported in AIR 2006 SC 3252. His contention is that as the judgment is no longer in existence, on the basis of which the impugned order has been passed, the impugned order is bad in law.
On the other hand, learned counsel has placed reliance upon a judgment delivered in the 3 case of Kailash Nath Agarwal and Others Vs. Pradeshiya Industrial and Investment Corporation of UP and another reported in AIR 2003 SC1886.
In the considered opinion of this court, once the judgment on the basis of which the impugned order has been passed was no longer in existence, the trial court could not have been passed the impugned order dated 03-02-2016, based upon the judgment, which was set aside by the Hon'ble Supreme Court.
Resultantly, the impugned order dated 03-02- 2016 is hereby quashed. The matter has been remanded back to the court below for passing a fresh order, in accordance with law. The parties are free to place the judgments relied upon before the court below.
Parties are directed to appear before the court below on 03-10- 2016. No order as to costs.
Certified copy as per rules."
Shri Vishal Baheti, learned counsel for the respondent submits that now the Ministry of Finance vide Notification No.S.O.3568 has notified 01.12.2016 (appointment date) as a date on which the provisions of Sick Industrial Company (Special Provisions) Repeal Act, 2003 shall come into force. This repeal Act provides for repeal of SICA Act, 1985 and related matters. By virtue of such repeal, now the BIFR and AIFR stand dissolved with effect from that date and all proceedings before them stands abated. Shri Baheti submits that now the petitioner cannot take the advantage Section 22 of the SICA Act which is not in force and the award is liable to be executed against the petitioner. Hence, in a change circumstances the impugned order is not liable to be set aside.
Notification No.S.O.3568 as published by the Ministry of Finance is reproduced below:
"MINISTRY OF FINANCE (Department of Financial Service) 4 NOTIFICATION New Delhi, the 25th November, 2016 S.O.3568(E).- In exercise of powers conferred by sub- section (2) of Section 1 of the Sick Industrial Companies (Special Provisions) Repeal Act, 2003 (1 of 2004), the Central Government hereby against the 1st day of December, 2016, as the date on which the provisions of the said Act shall come into force.
[F.No.3/2/2011-IF-II] R.N.Dubey, Economic Adviser"
It is correct that in case of Jay Engineering Works Ltd. Vs. Industry Facilitation Council and Another, reported in AIR 2006 SC 3252, the apex Court has held that provisions of Section 22 of the SICA shall prevail for the Section 10 of the Act of 1993 but now the situation has changed as the entire SICA Act 1985 has been repealed w.e.f 01.12.2016 and BIFR and AIFR have been dissolved, therefore, the decree in favour of the respondent under Sick Industrial Companies (Special Provisions) Act, 1985 can be executed against the petitioner without any impediment.
Hence, present petition is hereby dismissed.
(VIVEK RUSIA) Judge jasleen Digitally signed by Jasleen Singh Saluja Date: 2018.05.18 19:15:27 +05'30'