DHIR AND DHIR ASSET RECONSTRUCTION AND SECURITIZATION COMPANY LTD. Vs. AIR LIQUIDE NORTH INDIA PRIVATE LTD.

JUDGEMENT

(1.) THIS appeal filed under Section 483 of the Companies Act, 1956 (for brevity 'the Companies Act') challenges order dated 26.3.2009 passed in C.P. No. 96 of 2008 alongwith various applications including C.A. No. 151 of 2009. The appeal has been preferred by reconstruction company namely Dhir and Dhir Asset. Reconstruction and Securitization Company Ltd. which was impleaded as party respondent No. 2 in a winding up petition filed by M/s. Air Liquide North India Private Limited -respondent No. 1 -petitioner. In fact, Respondent No. 1 -petitioner had filed an application under Section 22(1) of the Sick Industries (Special Provisions) Act, 1985 (for brevity 'the SICA Act') seeking stay of proceedings on the ground that reference under Section 15(1) of the SICA Act was being considered in case No. 299 of 2004 and respondent No. 2, the Haryana Steel and Alloys had been declared sick. The application was rejected on the simple ground that the Appellant -Reconstruction Company has already taken over the Haryana Steel Alloys -respondent No. 2 under Sections 13(2) and 13(4) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interests Act, 2002 (for brevity 'the SARFAESI Act') on 28.11.2008 when possession notice was issued. Accordingly, the application under Section 22(1) of the SICA Act has been dismissed by the learned Company Judge after recording the finding that reference before the BIFR has abated.

(2.) THE Appellant Reconstruction Company moved an application being CA No. 151 of 2009 for modification of order dated 6.2.2009 passed by the learned Company Judge directing that assets of the company were not to be sold by any party without leave of the Court and had issued notice. The learned Company Judge adopted the reasoning given by him in his decision dated 20.3.2009 rendered in the case of PEGASUS Asset Reconstructions Company Pvt. Ltd. v. Haryana Concast Ltd. in CA Nos. 704 and 705 of 2008 in CP No. 133 of 2003 alongwith other Company Applications. In that judgement, the learned Company Judge made an attempt to harmonize the SARFAESI Act and the Companies Act. For the purpose of the instant case, the learned Company Judge observed as under:. I adopt the same reasoning here as well and the only modification in the order that I would make in the line of reasoning to conform to the facts of the case are that the operation of Section 446 of the Companies Act which talks about the procedure when a winding up order has been made or when the Official Liquidator has been appointed as Provisional Liquidator, has not yet arrived and the reference to a bar against institution of suit and other proceedings would not operate for the present. I reject the contention placed by the counsel for the petitioner that since the application has been filed before the purported act of reconstruction company to take over the assets under Section 13(4), it shall be construed, with reference to Section 441(2) of the Companies Act, that the winding up of the company the Tribunal (Court) shall be deemed to commence at the time of presentation of the petition for winding up. In my view, if the order of winding up is made by virtue of Section 441(2), it would relate back to the time of presentation of the petition. The order of winding up has not yet been made and I have directed counter of the company to be filed after dismissal of its application under Section 22 of SICA. The matter will be taken up for consideration in future. As of now, it will be premature to pass any orders under Section 446. (emphasis added)

(3.) THE grievance now made by the appellant is that by virtue of the aforesaid directions issued by the learned Company Judge fetters have been put on the discretion of the appellant which would not permit the Appellant Reconstruction Company to proceed in accordance with Section 13(7).