TMI Blog2001 (11) TMI 960X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ales-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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt 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 un-reported 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 State 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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