The main petition being Company Petition No.120 of 1996 has been preferred by the respondent herein / Creditor M/s.Supreme Petrochem Limited for an appropriate order of winding up of M/s.Hytaisun Magnetics Limited under secs.433 and 434 of the Companies Act, 1956 on the ground that the Company is unable to pay dues of Rs.1,36,75,137.50 ps. to the petitioner. That by order dtd.9/11/2000 the learned Single Judge has allowed the Company Petition No.120 of 1996 and has directed for winding up of the said Company. That being aggrieved by and dissatisfied with the order passed by the learned Single Judge dtd.9/11/2000, the said Company preferred OJ Appeal No.5 of 2001 in which the Company also preferred Civil Application No.25 of 2001 seeking stay of the order of winding up dtd.9/11/2000. The Division Bench by order dtd.10/10/2001 disposed of the aforesaid Civil Application No.25 of 2001 staying the further winding up proceedings pursuant to the order dtd.9/11/2000, however, the Official Liquidator was permitted to carry out inventory of the assets of the winding up. It appears that since the Company was sick and was before the BIFR, the Division Bench vide order dtd.10/10/2001 adjourned the aforesaid OJ Appeal sine die. That thereafter the Company withdrew the said appeal with a liberty to move an appropriate application before the Company Court in the main Company Petition No.120 of 1996 pointing out that the Company is before the BIFR and the proceedings under the provisions of Sick Industrial Companies (Special Provisions) Act ( hereinafter referred to as SICA Act for short) are pending, that is why, the Company has preferred present application to suspend and stay the order dtd.9/11/2000 passed in Company Petition No.120 of 1996 till the Reference/Appeal filed by the Company is before SICA is finally decided.
Today, when the present application is taken up for hearing, it is reported that the proceedings before the BIFR by way of Reference Case No.67 of 2006 are pending. It is also reported that even the proceedings before the Appellate Bench AAIFR by way of Appeal No.131 of 2008 are pending. Therefore, it is requested by the learned advocate appearing on behalf of the applicant Company to adjourn the hearing of the present application.
Prayer is opposed by Mr.A.S. Vakil, learned advocate appearing on behalf of the respondent original petitioner by submitting that earlier thrice References submitted by the Company are rejected and again the applicant Company is before BIFR, which is nothing but misuse of the provisions of the SICA Act and only with a view to see that the order passed by this Court in Company Petition No.120 of 1996 dtd.9/11/2000 is not acted upon and/or implemented on one ground or the other, the Company approaches BIFR and AAIFR. It is submitted that it is nothing but abuse of process of law.
Having heard the learned advocates appearing on behalf of the respective parties, it appears that the apprehension on the part of the learned advocate appearing on behalf of the respondent seems to be true. However, in view of the fact that the proceedings before the BIFR under the SICA Act being Reference Case No.67 of 2006 and proceedings before the Appellate Bench AAIFR being Appeal No.131 of 2008 are still pending, considering the provisions of SICA Act, this Court has no other alternative but to adjourn the hearing of the present application, hence, S.O. to 9/8/2010. It is hoped that in the meantime the BIFR and AAIFR shall dispose of the Reference Case No.67 of 2006 pending before the BIFR and Appeal No.131 of 2008 pending before the AAIFR. It will be open for the Company to place copy of this order before the BIFR and AAIFR for their consideration. The registry is also directed to sen copy of this order to the BIFR and AAIFR before whom the aforesaid proceedings are pending, at the earliest. S.O. to 9/8/2010.
SHAH, J.] rafik Top