{"id":241267,"date":"2006-09-14T00:00:00","date_gmt":"2006-09-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/jay-engineering-works-ltd-vs-industry-facilitation-council-on-14-september-2006"},"modified":"2017-04-13T02:02:06","modified_gmt":"2017-04-12T20:32:06","slug":"jay-engineering-works-ltd-vs-industry-facilitation-council-on-14-september-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/jay-engineering-works-ltd-vs-industry-facilitation-council-on-14-september-2006","title":{"rendered":"Jay Engineering Works Ltd vs Industry Facilitation Council … on 14 September, 2006"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Jay Engineering Works Ltd vs Industry Facilitation Council … on 14 September, 2006<\/div>\n
Author: S.B. Sinha<\/div>\n
Bench: S.B. Sinha, Dalveer Bhandari<\/div>\n
           CASE NO.:\nAppeal (civil)  4126 of 2006\n\nPETITIONER:\nJay Engineering Works Ltd.\t\t\t\t\t\n\nRESPONDENT:\nIndustry Facilitation Council and Anr.\t\t\t\t\n\nDATE OF JUDGMENT: 14\/09\/2006\n\nBENCH:\nS.B. Sinha & Dalveer Bhandari\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\n[Arising out of S.L.P. (C) No. 909 of 2005]
\nWITH<\/p>\n
CIVIL APPEAL NO.4127 OF 2006
\n[Arising out of S.L.P. (C) No. 991 of 2005]<\/p>\n
S.B. SINHA, J :\n<\/p>\n
 \tLeave granted.\n<\/p>\n
 \tThe Appellant herein is a public limited company engaged in
\nbusiness of manufacturing electronic fans and fuel injection equipments.
\nRespondent No. 2 is a small scale industry.  It manufactures copper wires.
\nIt supplied its products to the Appellant herein during the period 28th
\nDecember, 1996 and 3rd June, 2000.  As the Appellant Company became
\nsick, its Board of Directors made a reference in terms of Section 15 of the
\nSick Industrial Companies (Special Provisions) Act, 1985 (for short ‘the
\n1985 Act’) on 8.4.1994.  The Appellant Company was declared as sick
\nunit by the Board for Industrial and Financial Construction (for short “the
\nBoard”).  A rehabilitation scheme was framed by the Board but it was
\ndeclared to have failed by an order on 12.7.2001.  By reason of the said
\norder, however, Industrial Development Bank of India (IDBI) was
\nappointed as an operating agency.  A fresh report was submitted by the
\nsaid operating agency on 20th March, 2003 which was accepted by the
\nBoard whereupon a fresh rehabilitation scheme was sanctioned on
\n8.4.2003.\n<\/p>\n
 \tIn the meanwhile, the Respondent No. 2 herein filed a claim
\npetition before the Industry Facilitation Council (for short “the Council”)
\nRespondent No. 1 herein in terms of the provisions of the Interest on
\nDelayed Payments to Small Scale and Ancillary Industrial Undertakings
\nAct, 1993 (for short “the 1993 Act”).  Before the Council, the Appellant
\nherein raised a plea that it had been declared to be a sick company by the
\nBoard and as such the matter should not be proceeded further.  The
\nCouncil, however, opined that only because the Appellant Company has
\nbeen declared sick by the Board, it would not bind the Council to take a
\ndecision in the matter.  It passed an award directing:\n<\/p>\n
“That upon the submissions made by both the
\nparties in the above case and in the light of
\ncontentions raised it is prayed that the delay of
\ntwo years to four years was caused by the
\nrespondents for making the payment to the
\npetitioner, which is enough.  Therefore, Council
\nhas passed the order that an amount of Rs.\n<\/p>\n
10,92,253.00 and one and half percent interest
\nof PLR of State Bank of India is due to the
\nPetitioner Messrs. Diamond Wire Industries,
\nRatlam, of the Respondent Messrs. Jay
\nEngineering Works Limited, New Delhi.”\n<\/p>\n
 \tThe said award of the Council was put in execution.  The bank
\naccount of the Appellant was attached by the District Court, Ratlam.  A
\nwrit petition was filed by the Appellant herein before the Madhya
\nPradesh High Court questioning the same which by reason of the
\nimpugned judgment has been dismissed by a learned Single Judge.  A
\nLetters Patent Appeal preferred thereagainst was dismissed by the
\nimpugned judgment.\n<\/p>\n
 \tThe High Court in its impugned judgment proceeded on the
\npremise that the 1993 Act could prevail over the 1985 Act.\n<\/p>\n
 \tMr. S. Ganesh, learned senior counsel appearing on behalf of the
\nAppellant, at the outset, drew our attention to the fact that the award
\nmade by the Council in favour of the Respondent had been taken into
\nconsideration in the revised Scheme itself and as such the award of the
\nCouncil was non-executable.  It was urged that both the 1985 Act and
\n1993 Act operate in different fields and in that view of the matter, the
\nquestion that the 1993 Act prevailing over the 1985 Act would not arise
\nin the instant case.\n<\/p>\n
\tMr. Sushil Kumar Jain, learned counsel appearing on behalf of the
\nRespondents, on the other hand, submitted that the Scheme approved by
\nthe Board in 2003 is not applicable to the case of the Respondents.  It was
\nsubmitted that in any event by reason of the said Scheme the liability of
\nthe creditors could not be reduced.\n<\/p>\n
 \tIt is not in dispute that the award was made by the Council in
\nfavour of the Respondent No. 2.  However, it is also not in dispute that
\nthe Board in terms of its order dated 8.4.2003 approved the Scheme
\nwhich inter alia envisaged the following:\n<\/p>\n
“(xi) Rs. 462 lakhs for Settlement of “Dormant
\nTrade Creditors” on the basis of 25% principal
\namount,\n<\/p>\n
(xii) Rs. 540 lakhs for settlement of current
\noverdues of suppliers to be paid over a period of
\n18 months.”\n<\/p>\n
 \tIn the said Scheme, the award made in favour of the Respondents
\nfinds place in the category of ‘Dormant Creditors’.  The liabilities of the
\nAppellant vis-`-vis the Respondent No. 2 was, therefore, indisputably a
\nsubject matter of the said Scheme.  The High Court, in our opinion,
\ncommitted an error in proceeding on the premise that the awarded amount
\nhad not been included and could not be included in the sanctioned
\nrehabilitation scheme, the same being part of transactions which took
\nplace after 21.11.1997 ignoring the revised scheme made in the year
\n2003.\n<\/p>\n
 \tThe High Court furthermore opined that inclusion of the
\nRespondent as a deferred creditor in the fresh rehabilitation scheme dated
\n8.4.2003 also did not affect the situation in favour of the Appellant
\npresumably on the premise that the 1993 Act was a special Act.\n<\/p>\n
 \tBefore we advert to the contentions raised by the learned counsel
\nfor the parties, we may notice sub-section (2) of Section 6 of the 1993
\nAct which reads as under:\n<\/p>\n
“(2) Notwithstanding anything contained in
\nsub-section (1), any party to a dispute may
\nmake a reference to the Industry Facilitation
\nCouncil for acting as an arbitrator or conciliator
\nin respect of the matters referred to in that sub-
\nsection and the provisions of the Arbitration and
\nConciliation Act, 1996 (26 of 1996) shall apply
\nto such disputes as the arbitration or
\nconciliation were pursuant to an arbitration
\nagreement referred to in sub-section (1) of
\nsection 7 of that Act.”\n<\/p>\n
 \tWe may also notice that Section 10 thereof provides for a non-
\nobstante clause in the following terms:\n<\/p>\n
“10. Over-riding effect.–The provisions of this
\nAct shall have effect notwithstanding anything
\ninconsistent therewith contained in any other
\nlaw for the time being in force.”\n<\/p>\n
 \tThe 1993 Act was enacted to provide for and regulate the payment
\nof interest on delayed payments to small scale and ancillary industrial
\nundertakings and for matters connected therewith.\n<\/p>\n
 \tThe provisions of the 1993 Act, therefore, do not envisage a
\nsituation where an industrial company becomes sick and requires framing
\nof  a scheme for its revival.\n<\/p>\n
 \tIt is no doubt true that an award in relation to a claim of a small-
\nscale industry if made by the Council would be governed by the
\nprovisions of the Arbitration and Conciliation Act, 1996 (for short “the
\n1996 Act”).\n<\/p>\n
 \tThe 1985 Act is a complete code by itself.  Section 22 of the 1985
\nAct provides for special provisions.  Sub-section (1) of Section 22 was
\namended in the year 1994 by Act No. 12 of 1994 which reads as under:\n<\/p>\n
“22. Suspension of legal proceedings,
\ncontracts, etc.–(1) Where in respect of an
\nindustrial company, an inquiry under section 16
\nis pending or any scheme referred to under
\nsection 17 is under preparation or consideration
\nor a sanctioned scheme is under implementation
\nor where an appeal under sections 25 relating to
\nan industrial company is pending, then,
\nnotwithstanding anything contained in the
\nCompanies Act, 1956 (1 of 1956), or any other
\nlaw or the memorandum and articles of
\nassociation of the industrial company or any
\nother instrument having effect under the said
\nAct or other law, no proceedings for the
\nwinding up of the industrial company or for
\nexecution, distress or the like against any of the
\nproperties of the industrial company or for the
\nappointment of a receiver in respect thereof and
\nno suit for the recovery of money or for the
\nenforcement of any security against the
\nindustrial company or of any guarantee in
\nrespect of any loans or advance granted to the
\nindustrial company shall lie or be proceeded
\nwith further, except with the consent of the
\nBoard or, as the case may be, the Appellate
\nAuthority.”\n<\/p>\n
 \tThe said provision, thus, mandates that no proceeding inter alia for
\nexecution, distress or the like against any of the properties of the
\nindustrial company and no suit for recovery of money or for the
\nenforcement of any security, shall lie or be proceeded with further, except
\nwith the consent of the Board or as the case may be, the Appellate
\nAuthority.  The said statutory injunction will operate when an inquiry had
\nbeen initiated under Section 16 or a scheme referred to under Section 17
\nis under preparation and\/ or inter alia a sanctioned scheme is under
\nimplementation.  It is not disputed before us that the amount awarded in
\nfavour of the Respondent by the Council finds specific mention in the
\nsanctioned scheme which is under implementation.\n<\/p>\n
 \tThe award of the Council being an award, deemed to have been
\nmade under the provisions of the 1996 Act, indisputably is being
\nexecuted before a Civil Court.  Execution of an award, beyond any cavil
\nof doubt, would attract the provisions of Section 22 of the 1985 Act.
\nWhereas an adjudicatory process of making an award under the 1993 Act
\nmay not come within the purview of the 1985 Act but once an award
\nmade is sought to be executed, it shall come into play.  Once the awarded
\namount has been included in the Scheme approved by the Board, in our
\nopinion, Section 22 of the 1985 Act would apply.\n<\/p>\n
 \tIf the liabilities of the Appellant are covered by the Scheme framed
\nunder Section 22 of the 1985 Act, the High Court was clearly in error in
\ncoming to the conclusion that the provisions thereof are not attracted only
\nbecause the debt had been incurred after the Company was declared to be
\na sick one.\n<\/p>\n
 \tThe 1985 Act also contains a non-obstante clause in sub-section (1)
\nof Section 32 which reads as under:\n<\/p>\n
“32. Effect of the Act on other laws.–(1) The
\nprovisions of this Act and of any rules or
\nschemes made thereunder shall have effect
\nnotwithstanding anything inconsistent therewith
\ncontained in any other law except the provisions
\nof the Foreign Exchange Regulation Act, 1973
\n(46 of 1973) and the Urban Land (Ceiling and
\nRegulation) Act, 1976 (33 of 1976) for the time
\nbeing in force or in the Memorandum or
\nArticles of Association of an industrial
\ncompany or in any other instrument having
\neffect by virtue of any law other than this Act.”\n<\/p>\n
 \tThe 1985 Act was enacted in public interest.  It contains special
\nprovisions.  The said special provisions had been made with a view to
\nsecure the timely detection of sick and potentially sick companies owning
\nindustrial undertakings, the speedy determination by a Board of experts
\nfor preventive, ameliorative, remedial and other measures which need to
\nbe taken with respect to such companies and the expeditious enforcement
\nof the measures so determined and for matters connected therewith or
\nincidental thereto.\n<\/p>\n
 \tThe High Court has placed strong reliance on Deputy Commercial
\nTax Officer and Others v. Corromandal Pharmaceuticals and Others<\/a>
\n[(1997) 10 SCC 649] wherein this Court was considering an exceptional
\nsituation by reason of the fact that the liability of the sick company for the
\nfirst time arose after the date of sanctioned scheme and the sick industrial
\nunit was enabled to collect tax due to the Revenue from the exporters
\nthereafter but declined to pay it over to the Revenue wherefor recovery
\nproceedings had to be taken.  This Court categorically opined that there
\ncannot be any impediment in the enforcement of the Scheme.  Section 22
\nof the 1985 Act provides for a safeguard against impediment that is likely
\nto be caused in the implementation of the Scheme.  Section 22 was also
\nheld to be of wide import as regards suspension of legal proceedings from
\nthe moment, the inquiry is started till after the implementation of the
\nscheme or disposal of the scheme under Section 25 of the 1985 Act.  It
\nwas categorically held:\n<\/p>\n
“it will be reasonable to hold that the bar or
\nembargo envisaged in Section 22(1) of the Act
\ncan apply only to such of those dues reckoned
\nor included in the sanctioned scheme.”\n<\/p>\n
 \tThe ratio laid down in the said decision, therefore, instead of
\nassisting the Respondent assists the Appellant.\n<\/p>\n
 \tIn Maharashtra Tubes Ltd. v. State Industrial & Investment
\nCorporation of Maharashtra Ltd. and Another [(1993) 2 SCC 144] this
\nCourt held:\n<\/p>\n
“On the other hand, the 1985 Act was enacted,
\nas its preamble manifests, with a view to timely
\ndetection of sick or potentially sick companies
\nowning industrial undertakings, the
\nidentification of the nature of sickness through
\nexperts in relevant fields with a view to
\ndevising suitable remedial measures through
\nappropriate schemes and their expeditious
\nimplementation. Here the emphasis is to prevent
\nsickness and in cases of sick undertakings to
\nprepare schemes for their rehabilitation by
\nproviding financial assistance by way of loans,
\nadvances or guarantees or by providing reliefs,
\nconcessions or sacrifices from Central or State
\nGovernments, scheduled banks, etc. The basic
\nidea is to revive sick units, if necessary, by
\nextending further financial assistance after a
\nthorough examination of the units by experts
\nand only when the unit is found to be no more
\ncapable of rehabilitation, that the option of
\nwinding up may be resorted to”\n<\/p>\n
 \tBoth the Acts operate in different fields.  If the 1985 Act is
\nattracted, the question of its giving way of the 1993 Act would not arise.\n<\/p>\n
 \tIn Allahabad Bank v. Canara Bank and Another<\/a> [(2000) 4 SCC
\n406], this Court held :\n<\/p>\n
“There can be a situation in law where the same
\nstatute is treated as a special statute vis-`-vis
\none legislation and again as a general statute
\nvis-`-vis yet another legislation”\n<\/p>\n
 \tIn that case, it was further opined that although both the
\nCompanies Act, 1956 and the Recovery of Debts Due to Banks and
\nFinancial Institutions Act, 1993 are special laws, normally the latter shall
\nprevail.\n<\/p>\n
 \tWe have noticed hereinbefore that the 1985 Act was amended in
\n1994.  The 1994 Amending Act was enacted after the coming into force
\nof the 1993 Act.\n<\/p>\n
 \tBoth the Acts contain non-obstante clauses. Ordinary rule of
\nconstruction  is that where there are two non-obstante clauses, the latter
\nshall prevail. But it is equally well-settled that ultimate conclusion
\nthereupon would depend upon the limited context of the statute.  [See
\nAllahabad Bank  (supra)  para 34].\n<\/p>\n
In  Maruti Udyog Ltd. v. Ram Lal and Others<\/a> (2005) 2 SCC 638],
\nit was observed :\n<\/p>\n
“The interpretation of Section 25-J of the 1947 Act
\nas propounded by Mr Das also cannot also be accepted
\ninasmuch as in terms thereof only the provisions of the
\nsaid chapter shall have effect notwithstanding anything
\ninconsistent therewith contained in any other law
\nincluding the Standing Orders made under the Industrial
\nEmployment (Standing Orders) Act, but it will have no
\napplication in a case where something different is
\nenvisaged in terms of the statutory scheme. A beneficial
\nstatute, as is well known, may receive liberal
\nconstruction but the same cannot be extended beyond
\nthe statutory scheme”\n<\/p>\n
\tIn Shri Sarwan Singh and Another v. Shri Kasturi Lal<\/a> [(1977) 1
\nSCC 750], this Court opined :\n<\/p>\n
“When two or more laws operate in the same field
\nand each contains a non-obstante clause stating that its
\nprovisions will override those of any other law,
\nstimulating and incisive problems of interpretation
\narise. Since statutory interpretation has no
\nconventional protocol, cases of such conflict have to
\nbe decided in reference to the object and purpose of
\nthe laws under consideration”\n<\/p>\n
\tThe endeavour of the court  would, however, always be to adopt a
\nrule of harmonious construction.\n<\/p>\n
In NGEF Ltd. v. Chandra Developers (P) Ltd. and Another<\/a>
\n[(2005) 8 SCC 219], interpreting sub-section (4) of Section 20 of  SICA,
\nit was held :\n<\/p>\n
“It is difficult to accept the submission of the
\nlearned counsel appearing on behalf of the
\nrespondents that both the Company Court and BIFR
\nexercise concurrent jurisdiction. If such a construction
\nis upheld, there shall be chaos and confusion. A
\ncompany declared to be sick in terms of the provisions
\nof SICA, continues to be sick unless it is directed to be
\nwound up. \tTill the company remains a sick company
\nhaving regard to the provisions of sub-section (4) of
\nSection 20, BIFR alone shall have jurisdiction as
\nregards sale of its assets till an order of winding up is
\npassed by a Company Court.”\n<\/p>\n
\tIt was further held :\n<\/p>\n
“Section 32 of SICA contains a non obstante
\nclause stating that provisions thereof shall prevail
\nnotwithstanding anything inconsistent with the
\nprovisions of the said Act and of any rules or schemes
\nmade thereunder contained in any other law for the
\ntime being in force. It would bear repetition to state
\nthat in the ordinary course although the Company
\nJudge may have the jurisdiction to pass an interim
\norder in exercise of its inherent jurisdiction or
\notherwise directing execution of a deed of sale in
\nfavour of an applicant by the Company sought to be
\nwound up, but keeping in view the express provisions
\ncontained in sub-section (4) of Section 20 of SICA
\nsuch a power, in our opinion, in the Company Judge is
\nnot available. (See BPL Ltd.)<\/p>\n
We may, however, observe that the opinion of the
\nDivision Bench in BPL Ltd. to the effect that the
\nwinding-up proceeding in relation to a matter arising
\nout of the recommendations of BIFR shall commence
\nonly on passing of an order of winding up of the
\nCompany may not be correct. It may be true that no
\nformal application is required to be filed for initiating
\na proceeding under Section 433 of the Companies Act
\nas the recommendations therefor are made by BIFR or
\nAAIFR, as the case may be, and, thus, the date on
\nwhich such recommendations are made, the Company
\nJudge applies its mind to initiate a proceeding relying
\non or on the basis thereof, the proceeding for winding
\nup would be deemed to have been started; but there
\ncannot be any doubt whatsoever that having regard to
\nthe phraseology used in Section 20 of SICA that BIFR
\nis the authority proprio vigore which continues to
\nremain as custodian of the assets of the Company till a
\nwinding-up order is passed by the High Court.”\n<\/p>\n
\tIn ICICI Bank Ltd. v. Sidco Leathers Ltd.  and Others<\/a> [2006) 5
\nSCALE 27] the law is stated in the following terms :\n<\/p>\n
“The non-obstante nature of a provision
\nalthough may be of wide amplitude, the interpretative
\nprocess thereof must be kept confined to the
\nlegislative policy.  Only because the dues of the
\nworkmen and the debt due to the secured creditors are
\ntreated pari passu with each other, the same by itself,
\nin our considered view, would not lead to the
\nconclusion that the concept of inter se priorities
\namongst the secured creditors had thereby been
\nintended to be given a total go-by.\n<\/p>\n
 \tA non-obstante clause must be given effect to,
\nto the extent the Parliament intended and not beyond
\nthe same.”\n<\/p>\n
 \tFor the reasons aforementioned, the impugned judgment cannot be
\nsustained.  Before parting with this case, however, we may observe that
\nwe have not adverted to the question raised by the learned counsel for the
\nRespondents as to whether the Board while implementing the scheme
\ncould reduce the quantum of the liability of creditors, as we are of the
\nopinion that such a contention need not be gone into at this stage.  It will,
\ntherefore, further be open to the Respondent No. 2 to approach the Board,
\nif any occasion arises therefor.\n<\/p>\n
 \tThe impugned judgments are set aside.  The appeals are allowed.
\nNo costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Jay Engineering Works Ltd vs Industry Facilitation Council … on 14 September, 2006 Author: S.B. Sinha Bench: S.B. Sinha, Dalveer Bhandari CASE NO.: Appeal (civil) 4126 of 2006 PETITIONER: Jay Engineering Works Ltd. RESPONDENT: Industry Facilitation Council and Anr. DATE OF JUDGMENT: 14\/09\/2006 BENCH: S.B. Sinha & Dalveer Bhandari JUDGMENT: J […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-241267","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nJay Engineering Works Ltd vs Industry Facilitation Council ... on 14 September, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/jay-engineering-works-ltd-vs-industry-facilitation-council-on-14-september-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Jay Engineering Works Ltd vs Industry Facilitation Council ... on 14 September, 2006 - 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