MIRANKA ISPAT LTD Vs. ISPAT INDUSTRIES LTD

JUDGEMENT

(1.) HEARD learned counsel on both the sides. On August 20, 1999, C. A. No. 515 of 1999 for setting aside/recalling the order dated December 10, 1998, was taken up for hearing. The short point canvassed on behalf of the applicants who in fact are the original company that was ordered to be wound up by order dated December 10, 1998, was that on the date when the winding up order was passed, there was a reference pending before the BIFR and that consequently, this court was precluded from passing any order of winding up by virtue of the pendency of that reference. My attention was drawn to the ruling of the Supreme Court reported in Real Value Appliances Ltd. v. Canara Bank 1998 V AD (SC )121 , air1998 SC 2064 , [1998 ]93 Compcas26 (SC ), 1998 (3 )CTC112 , [1998 (79 )FLR675 ], jt1998 (3 )SC 715 , (1998 )119 PLR553 , 1998 (3 )SCALE427 , (1998 )5 SCC554 , [1998 ]3 scr170 wherein, the term "pending" has virtually been annotated and the Supreme Court has laid down that the reference ought to have been scrutinised and numbered on that date. There is a very deep and valid reason why the apex court has taken this view which is in order to avoid any form of possible mischief in so far as if a party has merely filed some proceeding before that authority as litigants some times do and left it in the office unattended, that does not qualify as a valid reference which is under consideration and which would oblige the High Court to wait until it is disposed of. In the present case, the respondents' learned counsel Mr. Chandy submitted before me that it is obligatory on the part of the applicants to produce documentary proof before this court of the fact that their reference was scrutinised and numbered as on december 10, 1998, as otherwise, the bar pleaded will not be operative. I need to mention here that Mr. Chandy advanced another submission, namely, that at this point of time the High Court must ignore the fact that the company is alluding to the reference because the reference itself had been dismissed. Incidentally today, it was brought to my notice that even the appeal filed against that order has failed. Since the factual position required to be clarified, I passed a short order dated August 20, 1999, granting the company time up to September 17, 1999, for purposes of obtaining the confirmation from the Registry of the Board for Industrial and Financial reconstruction in Delhi with regard to the all important question, i. e. , that the reference had been scrutinised and numbered before December 10, 1998. That order clearly sets out that enough time is being granted to the applicants because the confirmation has to be obtained from Delhi, and almost one month's time was granted for this purpose. I need to point out that it was not obligatory on the part of this court to have granted any time because it was the basic duty of the applicants to have produced proof of that fact along with the application but since they had not done it, I granted them further time. Today, learned counsel to represent the company states that his clients did make the effort but were unable to get the requisite particulars with regard to the confirmation and he has requested for some more time for this purpose. The reason why I am rejecting the application is because the High Court is not obliged to indefinitely adjourn cases on grounds such as these but more importantly because the reason pleaded before me is hollow. Undoubtedly, the company's learned counsel has done his best by requesting for further time but it is clear to the court that if a simple clarification to this effect could not have been obtained from Delhi within a period of one month it is very clear that the factual position is in fact against the applicants. Had that not been so, they would certainly have obtained the clarification which could have been done within less than a week and handed it over to their learned advocate because the company is aware of the fact that the application for setting aside is wholly dependent on this document.

(2.) IN view of the aforesaid position, what emerges is that there is nothing to indicate before me that a reference was pending in the true sense of the term as laid down by the Supreme Court as on December 10, 1998, and if that is the case the solitary ground on which this application has been filed fails. Furthermore, what I need to point out is that the order passed by the Board for industrial and Financial Reconstruction and the appellate authority have both been dismissed on the ground that no such reference was competent which really means that even assuming the company had gone to the Board for Industrial and Financial Reconstruction this court cannot take any cognisance of that proceeding. Looked at from any angle therefore, it is not permissible for this court to grant any relief on the present application. C. A. No. 515 of 1999 in Company petition No. 63 of 1998 which is for recalling the order dated December 10, 1998, fails and stands dismissed. C. A. No. 516 of 1999 in Company Petition No. 63 of 1998 which is for stay also fails and stands dismissed.

(3.) I have also heard learned counsel who represents the official liquidator on the merits.