JUDGMENT
Ganguly, J.
1. A petition for winding up was filed by Usha Beltron Limited, a company incorporated under the Companies Act, 1956 (‘the Act’), for the winding up of Fort William Industries Ltd., hereinafter called the said company.
2. In the said winding up petition, the petitioning creditor has alleged that its outstanding dues from the said company are to the extent of Rs. 1,90,38,971.65. The said amount is inclusive of the principal and the claim for payment of interest up to debit note dated 29-8-2000. The case of the petitioning creditor is that on the basis of diverse orders placed by the said company, the petitioning creditor from time to time sold the high/ low carbon wire rods of diverse specifications at rates and prices agreed upon.
3. The above winding up proceeding was instituted in the hon’ble court by the petitioning creditor in the month of November, 2000.
On or about 13-11-2000 directions were given by the learned judge on that winding up petition for the filing of affidavits. But affidavits were not filed by the said company initially and then despite extension of time. In the month of February, 2001, the company filed an application numbered as C.A. No. 78 of 2001 in which the company prayed for dismissal and/or the stay of Company Petition No. 516 of 2000 in view of the provisions of the Sick Industrial Companies (Special Provisions) Act, 1985 (‘the SICA’).
4. The grievance of the petitioning creditor is that the said petition namely C.A. No. 78 of 2001 was filed by the said company only for the purpose of delaying the hearing of the winding up proceeding and they have made a
further grievance of the fact that even though the said application being C,A. No. 78 of 2001 was filed, the same was not moved and repeated adjournments were obtained.
It is obviously clear from the facts stated above that in the instant case, the company had taken dilatory tactics in the matter of filing affidavits to the winding up petition.
5. However, the court heard C.A. No. 78 of 2001 in which the said company has taken the stand that in view of the pendency of the proceedings before the BIFR the instant winding up petition cannot proceed. In C.A. No. 78 of 2001 it has been stated by the said company that a reference was made of the case of the company in accordance with the provisions of the SICA to the Board for Industrial and Financial Reconstruction (‘the BIFR’) for taking of ameliorative steps for the revival of the said company. It is the case of the company that such reference was registered as case No. 107 of 1987 before the BIFR and it has been further stated that by an order dated 18-11-1987, the BIFR declared the said company to be a sick industrial company within the meaning of Section 3(1), Clause (o) of the Sick Industrial Companies (Special Provisions) Act, 1985.
It has also been stated that a substantial revival scheme of the said company was also prepared but the same could not be implemented in view of the inordinate time taken by State Bank of India to release the requisite fund. There has been subsequently a division in the family of Bangur who are the promoters of the said company. It has also been stated that on 13-11-1991, in a meeting held by the BIFR, for the purpose of reviewing the implementation of the scheme, the BIFR, after hearing the submissions of the concerned parties, were pleased to direct the amendment of the scheme. Subsequently, in a meeting convened by the BIFR on 5-1-1995, a modified scheme of revival of the applicant-company based on a one-time settlement was drawn up and sanctioned by the BIFR.
It also appears that in respect of certain orders passed by the BIFR, the said company filed a writ petition before this hon’ble court. However, one thing appears clear that the claim of the petitioning creditor is not covered either under the original or the modified scheme. It has also been admitted that on 25-2-2000, application was made by the company for further modification of the scheme. Even that scheme does not cover the claim of the petitioning creditor. The question, in the background of these facts, is whether the present winding up petition can proceed or should be stayed ?
6. Mr. Mukherjee, the learned counsel for the petitioning creditor has submitted that Company Application No. 78 of 2001 is wholly misconceived and should be dismissed. The learned counsel submitted that the admitted position factually is that the claim of the petitioning creditor in the winding up petition is outside the purview of the original scheme as well as the modified scheme for the alleged revival of the company. The learned counsel further submitted that even from the supplementary
affidavit which has been filed in this case it does not appear that the dues of the petitioning creditor are included in the said scheme. The learned counsel has invited the attention of the court to the said supplementary affidavit affirmed on behalf of the said company on 12-9-2001, pursuant to the leave of this court. The learned counsel has drawn the attention of this court to page 13 of the said supplementary affidavit. The said document is nothing but part of Form A which is a statutory form mentioned in regulation 19, framed under the SICA. Under the said form, the company, which is being declared sick, is to furnish information to the BIFR. From the said form, it appears that there is column 11 in that form where the company has to declare whether any legal action has already been initiated by any creditor. It has also been mentioned that if any such action is initiated the copy of all suits or winding up petitions and court orders should be furnished. Against the said column the said company has already mentioned the winding up petition filed against the said company by Usha Martin Industries Limited and Tata Iron Steel Company Ltd. The attention of the court was also drawn to page 19 where there is column 26 which shows the names of sundry creditors. The name of Usha Beltron, the petitioning creditor is not there. Again from page 36 of the said affidavit it appears that against the column of sundry creditors, the documents which were filed by the said company did not contain the name of Usha Beltron, the petitioning creditor.
Therefore, according to the petitioner the claims in the present winding up petition are nowhere included within the revival scheme allegedly prepared by the BIFR.
After making those factual submissions, the learned counsel referred to a decision in the case of Dy. CTO v. Corromandal Pharmaceuticals [1997] 89 Comp. Cas. 1, 14 SCL 154 (SC)
7. The learned counsel relying on the said decision submitted that the bar contemplated under Section 22 will apply only to such dues which are reckoned or included within the sanctioned scheme for rehabilitation and the learned counsel submitted that the proceedings are not barred in respect of other dues. The facts in Corromandal Pharmaceuticals’ case (supra) are that the company, Corromandal, is an assessee to Sales-tax under the Andhra Pradesh General Sales-tax Act, 1957. It was assessed for the assessment year 1992-93 by order dated 3-1-1994, and for the year 1993-94 by order passed in 1995. The Sales-tax authorities initiated action under Section 17 of the Andhra Pradesh General Sales-tax Act for recovery of the said dues. Then the appeals were preferred from the assessment orders and the appellate authority granted a conditional order of stay to pay the tax assessed in instalments. Even then, there was default. For the aforesaid two years, the arrears of Sales-tax dues from the petitioner-company are stated to be Rs. 9,53,833. The assessment orders for the said years were passed on 3-1-1994, and in 1995 and long before the scheme was sanctioned by the BIFR on 19-11-1990.
8. On those facts, the learned judges held in para 7 that even though the scheme for rehabilitation of the company is under implementation, it cannot be disputed that the arrears of Sales-tax relate to the period which is much after the period when the sanction was sanctioned and it was submitted on behalf of the revenue that the legal bar under Section 22 of the SICA could only be in respect of Sales-tax dues included in the scheme. The learned judges hearing the rival contentions of the parties in Corromandal Pharmaceuticals’ case (supra) in para 10 of the judgment gave the finding that the plea put forward by the revenue is reasonable and should be accepted. The learned judges further held in para 10 as follows :
“…Under the statute, the BIFR is to consider in what way various preventive or remedial measures should be afforded to a sick industrial company. In that behalf, BIFR is enabled to frame an appropriate scheme. To enable the BIFR to do so, certain preliminaries are required to be followed. It starts with the reference to be made by the board of directors of the sick company. The BIFR is directed to make appropriate inquiry as provided in sections 16 and 17 of the Act. At the conclusion of the inquiry, after notice and opportunity afforded to various persons including the creditors, the BIFR is to prepare a scheme which shall come into force on such date as it may specify in that behalf….” (p. 10)
9. The learned judges further explained the rationale behind Section 22 as follows in para 10 of the judgment and which I quote below :
“… Any step for execution, distress or the like against the properties of the industrial company or other similar steps should not be pursued which will cause delay or impediment in the implementation of the sanctioned scheme. In order to safeguard such state of affairs, an embargo or bar is placed under Section 22 of the Act against any step for execution, distress or the like or other similar proceedings against the company without the consent of the board or, as the case may be, the appellate authority. The language of Section 22 of the Act is certainly wide. But, in the totality of the circumstances, the safeguard is only against the impediment that is likely to be caused in the implementation of the scheme. If that be so, only the liability or amounts covered by the scheme will be taken in, by Section 22 of the Act. So we are of the view that though the language of Section 22 of the Act is of wide import regarding suspension of legal proceedings from the moment an inquiry is started, till after the implementation of the scheme or the disposal of an appeal under Section 22 of the Act, it will be reasonable to hold that the bar or embargo envisaged in Section 22(1) of the Act can apply only to such of those dues reckoned or included in the sanctioned scheme….” (p. 10)
10. The learned counsel very strongly relied on the said principles which were laid down by the Apex Court after considering the case-law on the point.
11. The learned counsel next relied on a judgment of the Delhi High Court in the case of Sirmor Sudburg Auto Ltd. v. Kuldip Singh Lamba [1998] 91 Comp. Cas. 727. The learned counsel relied on page 733 of the said
report in order to contend that the mere pendency or initiation of proceeding before the BIFR is not sufficient to attract the bar of Section 22 of the SICA. It appears that the learned judge delivering the judgment in Sirmor Sudburg Auto Ltd.’s case (supra) relied on Corromandal Pharmaceuticals’ case (supra) and held that mere pendency of an enquiry under Section 22 would not suffice to stay the proceeding unless the dues in respect of which proceedings are initiated are included in the sanctioned scheme. The learned counsel very much relied on the observation made by the learned judge that Section 22(1) is not attracted in respect of the dues incurred after the sanctioning of the scheme. Relying on those observations in Sirmor Sudburg Auto Ltd.’s case (supra). The learned counsel urged that in the instant case admittedly the dues of the petitioning creditor are not included in the sanctioned scheme and, therefore, this winding up proceeding should go on.
12. The learned counsel also relied on a decision of the Division Bench judgment of Andhra Pradesh High Court in the case of Vibgyar Ink Chem (P.) Ltd. v. Safe Pack Polymers Ltd. [1998] 93 Comp. Cas. 407. In that case also the court was considering the question of suspension of legal proceedings in view of the provision of Section 22. The Division Bench of the Andhra Pradesh High Court relying on the decision of the Apex Court in Corromandal Pharmaceuticals’ case (supra) held when the scheme was being considered without reference to the claim of the petitioner, in that case, it will not attract the ban under Section 22(1). The learned judges of the Division Bench summarised their observations in para 10 as follows :
“…The Board has not been able to consider these claims. Obviously, the scheme as framed also has no reference to the claim of the petitioner, a creditor. Does that mean and imply the petitioner-creditor shall have to wait until after the fullest implementation of the scheme, in terms of the scheme, as sanctioned by the Board ? It is an independent transaction de hors the scheme and obviously cannot thus be covered within the ambit of Section 22 of the 1985 Act.” (p. 414)
13. The learned counsel also relied on a judgment in the case of Pranami Press v. Vinedale Distilleries Ltd. [1998] 94 Comp. Cas. 926, 17 SCL 10 (AP). In that case also the question of suspension of winding up proceedings in view of Section 22 came up for consideration. The learned judges considered the judgment of the Supreme Court in the case of Corromandal Pharmaceuticals (supra) and held that since sick company incurs a debt subsequent to the scheme framed by the BIFR for rehabilitation, no permission is required from the BIFR for taking action against the company for recovery of the debts.
14. Lastly, the learned counsel also relied on a Division Bench judgment of this High Court in the case of Taulis Pharma Ltd. v. Bengal Immunity Ltd. [2002] 108 Comp. Cas. 237 (Cal.), Infra. The said decision also deals with the question of maintainability of the winding up petition in the context of the bar of Section 22. It appears that the learned judges of the
Division Bench in Taulis Pharma Ltd.’s case (supra) considered the principles in Corromandal Pharmaceuticals’ case (supra) and also the decision of the Delhi High Court in Sirmor Sudburg Auto Ltd.’s case (supra) and the Andhra Pradesh Division Bench judgment in Pranami Press’s case (supra) and also the Division Bench judgment of the Andhra Pradesh High Court in Vibgyar Ink Chem. (P.) Ltd. ‘s case (supra),
15. The learned judges of the Division Bench observed that the ratio in Corromandal Pharmaceuticals ‘case (supra) is clearly to the effect that the bar envisaged under Section 22 of the SICA covers the state of affairs up to the date of the presentation of the scheme and the learned judges expressly rejected the argument on behalf of the company that the ratio in the case of Corromandal Pharmaceuticals’ case (supra) is confined only to Sales-tax dues of the State.
16. The learned counsel appearing for the company has however tried to distinguish the decision in Corromandal Pharmaceuticals’ case (supra) by saying that the ratio in the case of Corromandal Pharmaceuticals (supra) must be read in the context of Sales-tax collection by the company. The learned counsel submitted that the Sales-tax collected by the company does not belong to the company. The company merely collects it as a trustee and it is public money. So the money is not and cannot be included in the scheme. The learned counsel further submitted that on a proper reading of Section 22, it is clear that the status of the sick company is not dependent on whether its debts are post-scheme or pre-scheme. What is relevant is there should be no impediment in the implementation of the scheme for the revival of the sick company.
17. The learned counsel further submitted that if in the course of implementation of the scheme the company is wound up then nothing remains for implementation and the scheme is bound to be frustrated. Therefore, the learned counsel invited the court to read the judgment of Corromandal Pharmaceuticals ‘case (supra) in its proper perspective and wanted the court to consider the judgment of B.P. Jeevan Reddy, Justice B.P. Jeevan Reddy, according to the learned counsel, in a concurring judgment has made it clear that Section 22 calls for a close scrutiny in order to prevent unfair advantage being taken by certain industrial companies of the wide language used in Section 22. The learned counsel submitted that the anxiety of the learned judges was to see that dishonesty and unfair practices do not flourish at the cost of public money. In other words, the learned counsel submitted that in the facts of this case, after the winding up proceeding is stayed collection of public revenue will not in any way suffer. But if on the other hand, the binding up proceeding is not stayed, the company is allowed to be wound up and that will be the biggest impediment in the implementation of the scheme. The learned counsel further submitted that the new scheme which has been filed by the petitioning creditor before the BIFR is at the scrutinising stage and not yet has been finalised. Therefore, in accordance with the Explanation to
Section 16(3) of the SICA, this is a pending scheme. The learned counsel also relied on a judgment of the Supreme Court in the case of Real Value Appliances Ltd. v. Canara Bank, [1998] 93 Comp. Cas. 26, 16 SCL 445
The learned counsel also relied on the decision of the Supreme Court in the case of Municipal Corporation of Delhi v. Gurnam Kaur . The learned counsel relied on para 7 of the judgment in Gurnam Kaur’s case (supra) for the purpose of contending that pronouncements of law which are not part of the ratio are not authoritative and he also relied on the doctrine of sub silentio as explained in the said judgment by the learned judges in para 11. The learned counsel submitted that the pronouncement of law in Corromandal Pharmaceuticals’ case (supra) must be appreciated in the context of the points which were argued in that case and not on the basis of certain observations made in the said judgment. Therefore, the learned counsel said that the said judgment must operate only against the dues of the revenue which were collected by Corromandal Pharmaceuticals’ case (supra) the company and in respect of which proceedings have been taken. The bar under Section 22 will not be attracted in a case like the present one where public revenue is not involved.
18. This court finds that there may be some substance in the argument of the learned counsel for the company but it is difficult for this court to uphold the said submissions in view of the pronouncement of the Supreme Court in Corromandal Pharmaceuticals’ case (supra) which has been followed and explained in the unreported Division Bench judgment of this court in Taulis Pharma Ltd’s case (supra). From the said unreported Division Bench judgment of this court which is binding on me, it is clear that the learned judges of the Division Bench expressly negative a similar contention raised on behalf of the company in that case. Those observations made by the learned judges are quoted below :
“We cannot accept the contention of Mr. Bhatacharjee to the effect that the ratio of the judgment of the Supreme Court in Corromandal Pharmaceuticals ‘case (supra) must be confined only to the Sales-tax or Stale revenue collected by the company from third parties in respect whereof it acts as a trustee.”
19. In order to counteract that position, the learned counsel for the company relied on the subsequent decision of the Supreme Court in Tata Davy Ltd. v. State of Orissa [1998] 93 Comp. Cas. 1. The learned counsel submitted that in Tata Davy Ltd. ‘s case (supra) it has been made clear that the arrears of Sales-tax cannot be recovered from the company without first seeking the consent of the Board in this behalf. But this court finds that there are the factual differences in Tata Davy Ltd.’s case (supra). In Tata Davy Ltd. ‘s case (supra) arrears of Sales-tax were in respect of the assessment years of 1983-84 and 1984-85 and the company was declared sick on 9-2-1988, within the meaning of the SICA and thereafter a reference was made and a scheme was sanctioned by the Board. In the context of those facts, the learned judges held in Tata Davy Ltd.’s case
(supra) that the Slate Government cannot recover from the appellant-company arrears of the revenue, which were obviously in respect of the assessment years of 1983-84 and 1984-85 and were prior to the date of sanctioning of the scheme, without the sanction of the Board. But in the instant case, the position is totally different. Here admittedly the dues of the petitioning creditor relate to a period, which is much after the sanctioning of the scheme. The said dues are not admittedly included within the scheme.
20. In that view of thematter, this court following the ratio in Corromandlal Pharmaceuticals’ case (supra) as explained by the Division Bench in Taulis Pharma Ltd.’s case (supra) is of the view that no order can be passed in favour of the company on Company Application No. 78 of 2001 and the said application is dismissed. The company petition to which affidavit has already been filed by the company may now be posted before the appropriate Bench on 3-12-2001.
Company Application No. 78 of 2001 is thus dismissed. There will be no order as to costs.
21. Department is directed to issue xerox certified copy of this judgment and order expeditiously, if applied for.