JUDGMENT
Viney Mittal, J.
1. In view of the law laid down in the case of Shiv Shakti Coop. Housing Society, Nagpur v. Swaraj Development and Ors., A.I.R. 2003 S,C. 2434, the revision petition filed by the petitioner under Section 115 CPC is not maintainable.
2. Faced with this difficulty, the learned counsel submits that the present revision petition be treated as petition under Article 227 of the Constitution of India. The prayer made by the learned counsel is allowed.
3. Onida Savak Limited (hereinafter referred to as the petitioner-firm”) is defendant No. 7 before the trial Court.
4. A suit for rendition of accounts was filed by the plaintiff-firm. In the aforesaid suit an application, was filed by the petitioner-firm that proceedings under the Sick Industrial Companies (Special Provisions) Act, 1985 were pending before the BIFR and as such in view of Section 22 of the Act, the proceedings in the suit were liable to be stayed.
5. The learned trial Court vide order dated February 19, 2001 dismissed the aforesaid application. It was observed that the applicant had failed to specify the prerequisite of the provisions of the Act and has not been able to establish the factum as to whether any enquiry under Section 16 of the Act is pending for consideration.
6. The learned counsel appearing for the petitioner-firm has submitted that the matter was still pending before the appellate authority under Section 25 of the Act and, therefore, the observations made by the learned trial Court that the proceedings were not shown to be pending was factually incorrect. It was farther submitted by the learned counsel for the petitioner that the learned trial Court had not taken into consideration the various documents with regard to the pendency of the said proceedings under the Act and had also not passed a speaking order.
7. I have heard the learned counsel for the parties and from the perusal of the impugned order, I find that the contention of the learned counsel for the petitioner deserves to succeed. The order passed by the trial Court does not contain any reasons for rejection of the application filed by the defendant-applicant. If the matter is pending before the BIFR or before the appellate authority under the provisions of the Act, then the contention raised on behalf of the applicant-firm was liable to be accepted. The learned trial Court has not dealt with the material available on the record, therefore, the impugned order is set aside and the matter is remanded back to the learned trial Court for fresh decision in accordance with law. The parties shall be at liberty to produce such material before the learned trial Court in respect of their respective pleas as is available to them in accordance with law.
8. The parties through learned counsel are directed to appear before the learned
court on October 14, 2003.
RMS.