TMI Blog2000 (8) TMI 1054X X X X Extracts X X X X X X X X Extracts X X X X ..... r Mills (in liquidation) ( the company ) made an application for framing a scheme for rehabilitation of the company before the Trial Court. The learned trial Judge considered the matter at length and rejected the application filed by some of the workers of the company on 10-1-2000, by holding that the petitioners were quite unable to establish a case to put any force in the proposed scheme for rehabilitation of the company ( sic ). It was held by the trial Court that no such rehabilitation scheme could be allowed where there was no surety of funds and no source of funds has been indicated clearly. In the order impugned in this appeal, it was also found by the learned trial Judge that in fact, the alleged financier has not till date come for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company. 5. So far as the first appeal is concerned, we do not see any reason to interfere with the order as it is crystal clear that by the order dated 10-1-2000, the learned trial Judge gave reasons for rejecting the application and ultimately by a further order dated 17-1-2000, passed a formal order of winding up on the basis of such reasoning for dismissing the application on 10-1-2000. Therefore, it cannot stand to reason that the learned trial Judge had proceeded without any application of mind when the application for framing rehabilitation scheme filed by some of the workers of the company was considered and rejected. 6. Mr. Abhrajit Mitra, the learned counsel, however, strongly relied upon a decision reported in Eastern P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pects on account of admission and advertisement. In other words there is no dispute about the subject but there is a dispute about the object. 8. Dr. Tapas Banerjee, the learned senior counsel appearing on behalf of respondent No. 2 joined issue therein by saying that the principle as laid down in Eastern Paper Mills Ltd. s case ( supra ), is not good law in view of the ratio of several Supreme Court and High Court judgments not referred to therein but applicable in this context. 9. First, he cited Industrial Reconstruction Bank of India v. Textile Processing Corpn. of India Ltd. [1990] 1 Cal. LT 152. Paragraph 12 of the judgment speaks as follows : "It is quite clear from section 20(2) of the said Act that a distinction is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part is concerned, the same might not be a good law in view of the subsequent judgment including the judgment already referred to being Eastern Paper Mills Ltd. s case ( supra ), it was held that it was not obligatory on the part of the High Court to accept the opinion from the BIFR without examining the correctness of the same. 11. But so far as the second part is concerned, i.e., in respect of the question of admission and advertisement, etc., that cannot be made since there is a distinction between the proceeding ordinarily initiated under sections 433, 434 and 439 of the Companies Act, 1956 ( the Act ) and the proceeding being recommended by the BIFR to adjudge its viability, therefore, such part is to be dispensed with by the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 50 of Joseph Kuruvilla Vellukunnel v. Reserve Bank of India [1962] 32 Comp. Cas. 514 (SC), a five-judge Bench decision to show that a procedure for winding up banks and institutions to the exclusion of the Companies Act is to be found in other statutes. Therefore, such banks and institutions are to be liquidated under special laws to the exclusion of the Companies Act, under the statutes creating them. 15. Hence, applying the similar analogy it can be construed that when a company is under the BIFR, the Sick Industrial Companies (Special Provisions) Act, 1985, being a Special Act, will have prevailing effect over the Companies Act. 16. Mr. Ashoke Dhandania and Mr. Asim Banerjee, the learned counsels, appeared on behalf of other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the BIFR. 19. We have considered the matter at length. Special law always has an overriding effect over the general law in the arena of conflict. Law is to be read that there is no necessity for the Court to abdicate its own function of determining the question of winding up as to whether it is just and equitable by applying the requirements of section 439 or 440, as the case may be. In other words, applicability of such sections is dispensed with by the appropriate provisions of the special Act. Therefore, the rules under Companies (Court) Rules, 1959, as above specially rule 96 as applicable under such provisions of the Companies Act made for the purpose of admission of petition and directions as to advertisement, etc., have no ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
