LAXMICHAND DAYABHAI EXPORTS COMPANY Vs. PRESTIGE FOOD LTD

JUDGEMENT

(1.) THIS is a company petition filed by the petitioner as one of the creditor of the respondent-company under Section 433 (e) of the Companies Act against the respondent-company. The winding up of respondent-company is sought essentially on the ground of their inability to pay the petitioner's debt as contemplated under Section 433 (e) of the Act,

(2.) ADMITTEDLY, proceedings before the BIFR are pending under Sections 15 q and 16 of SICA at the instance of respondent-company in reference case No. 187 of 1999. Under these circumstances, the bar contained under A Section 22 of SICA is attracted for proceeding for winding up. In my opinion, therefore, the proper course for the petitioner would be to approach the BIFR and participate in the proceedings as one of the creditors rather than to prosecute the petition for winding up. In the event of reference being answered against the respondent, the petitioner will be free to file an either petition for winding up on the same cause of action in this Court, or to execute the money decree obtained by them against the respondent, as the case may be in accordance with law on the same cause of action in appropriate executing court against the company and in the event if BIFR deciding the reference in favour of the respondent, the petitioner will be at liberty to seek protection of their dues with the assistance of BIFR for making the payment depending upon the scheme so made under the SICA, or if in the event of any recommendation made by the BIFR to this Court for winding up of this Company then the petitioner will be entitled to participate in winding up proceedings.

(3.) IN case, if petitioner approaches the BIFR for adjudication of their dues in pending afore-mentioned reference then, the same shall be taken note of by the authorities concerned including O. A. while passing the appropriate orders in the BIFR proceedings in aforementioned reference registered at the instance of respondent-company.