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2011 (4) TMI 1206 - HC - Companies LawWinding up – creditors – company unable to pay its debt - During the pendency of the proceedings, the company was referred to the BIFR and was declared a sick industrial unit under the provisions of the Sick Industrial Companies (Special Provisions) Act 1985 - court by its order dismissing all the company petitions, but reserving liberty to them to file an application for revival of their petitions in the event of the company being revived and comes out of the BIFR - one of the creditors of the company-ARCIL filed a miscellaneous application, before the BIFR for abatement of the reference of the company under the third proviso to section 15(1) of the Act in view of the fact that the secured creditors have taken action against the company under section 13(4) of the SARFAESI Act - appellant contended that even if the proceedings before the BIFR was terminated as on January 5, 2010, when an appeal was filed within the time prescribed under law and the appeal was pending, section 22 of the Act is attracted and no order of winding up could have been passed by the company court. Therefore, he submits that without going into the merits and other grounds urged in the appeal memo that the order impugned is liable to be set aside on the short ground of want of jurisdiction of the company judge to pass the order - respondent contended that the application for revival was filed after the proceedings before the BIFR stood abated. The first respondent had no notice of the appeal filed by the company. As this court has reserved the liberty to the first respondent to revive the company petition, after taking out notice to the company, the company court being satisfied with all the ingredients as contemplated under section 434, has proceeded to pass the order of winding up, which is in accordance with law and this appeal is wholly misconceived – Held that:- contention that the SARFAESI Act has a overriding effect on other provisions or other enactment has nothing to do with the power of the company court to entertain and proceed with the winding up petition when an appeal under section 25 of the Act is pending. The language employed in section 22 is absolute and mandatory and the company court is prohibited from proceeding with the winding up proceedings much less to pass winding up order. order passed by the company court or by this court in this proceeding would not affect the proceedings taken by the secured creditors under the provisions of the SARFAESI Act. appeal is allowed
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