LML LTD Vs. SUNIL MITTAL

JUDGEMENT

(1.) This appeal is directed against the order dated 17.01.2011 wherein an application filed by the petitioner (defendant in the suit) (I.A. No.7089/2009) under Section 22(1) of the Sick Industrial Companies (Special) Provisions Act,1985 (hereinafter referred to as "the said Act") had been dismissed.

(2.) Record shows that the respondent (plaintiff in the suit) had filed a suit for recovery of Rs.44,05,803.47 of which the principal amount was Rs.24,83,409.27; there was an interest figure of Rs.15,39,714.20 and sales tax was claimed in the sum of Rs.3,82,680/-. The suit was numbered as CS(OS) No.2249/2008. The plaintiff claiming himself to the proprietor of M/s Shree Shyam Packaging Industries, Gulshan Park, Opposite Rajdhani Dal Mills, Main Rohtak Road, Nangloi, Delhi was engaged in the business of manufacture and sale of packaging material. The appellant was a company engaged in the business of manufacture and sale of two wheeler scooter in the domestic as also in the foreign market. The appellant had sent a requirement to the respondent for packaging of its scooters which were meant for export; these crates were supplied by the respondent. The bills of the respondent remained unpaid which had culminated in the principal figure of Rs.24,83,409.87. Suit was accordingly filed for the recovery of the principal amount. Interest was claimed at 24% per annum; the suit amount also included the alleged sales tax dues claimed by respondent.

(3.) Written statement was filed by the appellant. The claim of the respondent was disputed. The preliminary objection raised was that the suit of the respondent was not maintainable as the petitioner was a sick company and in view of the provisions of Section 22(1) of the SICA without the permission of the Board of Industrial and Financial Reconstruction (BIFR) suit could not proceed. A separate application under Section 22(1) of the said Act was also filed; order passed by the BIFR (case No. 180/2006) on a reference by the appellant company was placed on record. An affidavit of the appellant company through its Director D.R.Dogra was also placed before the learned Single Judge to substantiate the argument of the appellant that the claim made by the respondent was for a sum of Rs.21,74,490.88 which was clear from the audited statement of account of the respondent company itself; it was not Rs.24,83,409.27 .