TMI Blog1989 (7) TMI 306X X X X Extracts X X X X X X X X Extracts X X X X ..... to as "the Act"). The undisputed facts are these : Company Petition No. 6 of 1988 was filed by a creditor seeking an order of winding up of Vishnu Textiles Ltd., Bangalore. That petition came to be allowed on June 3, 1988, and the official liquidator attached to this court was appointed the liquidator. That order has become final in so far as the provisions of the Companies Act are concerned in that no appeal against the winding up order was filed nor was any person aggrieved by that order. In the affidavit in support of the prayer in the company application under consideration it is stated that the former managing director of the applicant-company has proposed a scheme of rehabilitation to the Board constituted under the Sick Indust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ointment of a receiver in respect thereof shall lie or be proceeded with further, except with the consent of the Board or, as the ease may be, the appellate authority." The expression "industrial company" is defined under the Act as follows : "industrial company' means a company which owns one or more industrial Undertakings." The following clause ( f ) of sub-section (1) of section 3 of the Act defines "industrial undertakings" as follows : "industrial undertakings' means any undertaking pertaining to a scheduled industry carried on in one or more factories by any company but does not include ( i )an ancillary industrial undertaking as defined in clause ( aa ) of section 3 of the Industries (Development and Regulation) Act, 1951 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abilitation. In other words, for a reference to be made to the Board, the pre-requisite is the existence of a board of directors of the industrial company which is sick. If that Board does not exist in the eye of law on any given date, then the competence to make a reference itself disappears. As I have noticed earlier, Vishnu Textiles Ltd. came to be wound up on June 3 1988 by an order of this court. From the date of communication of that order, the board of directors ceased to hold office and they are directors only for purposes of filing the statement of affairs in aid of the winding up proceedings and they do not exist for any other purpose. Therefore, if a reference is made by any body of persons claiming to be board of directors aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndated under section 31 of the Act, which reads as follows : "31. Saving of pending proceedings. Where a receiver or an official liquidator has been appointed in any proceeding pending immediately before the commencement of this Act in any High Court for winding up of an industrial company, such proceedings shall not abate but continue in that High Court." Therefore, from whatever angle one may look at it, this petition is liable to be dismissed. It is accordingly dismissed subject to the observation that if there is a rehabilitation scheme which may revive the company, such scheme should be proposed to the court after notice to the official liquidator and that will be considered and disposed of in accordance with law. - - TaxTMI - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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