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TMI Blog2008 (11) TMI 405X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of the Sick Industrial Companies (Special Provisions), Act, 1985 ("the SICA"). On June 23, 1997, the petitioner was declared a sick industrial company. The rehabilitation scheme was prepared, but ultimately vide order dated December 18, 2002, the BIFR recommended winding up of the petitioner-company. Against the said order, appeal was pending before the Appellate Authority for Industrial Financial and Reconstruction (AAIFR). In the meanwhile, the impugned notice under section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ("the Securitisation Act") was issued and possession of land, plant, machinery and building was taken in February 2004, with police help. The petitioner settled the dues of PSIDC as per one-time settlement. 3. The contention raised in the petitions is that once the petitioner had paid dues as per the one-time settlement scheme, proceedings under the Securitisation Act, could not be taken. The account of the petitioner was never declared a NPA by PSIDC, which was necessary before taking action under the said Act. The petitioner was not given a hearing. Since the proceedings were pending befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has passed the Sick Industrial Companies (Special Provisions) Repeal Act, 2003. The same has to come into force on the date specified in the notification of the Central Government which has not yet been issued. The reason for repeal appears to be that there was wide spread misuse of the provisions of the SICA against payment of dues merely by making a reference and keeping the proceedings pending for a long period. 12. Reference may also be made to the Securitsation Act, which was enacted to help banks and financial institutions to facilitate speedy recovery by securitisation of financial assets, in the light of the Narasimham Committee I and II and Andhyarujina Committee constituted by the Central Government for the purpose of examining banking sector reforms. The Act sets up a machinery for enforcing securitisation by summary disposal of objections and to dispose of property available as security against the loanees. Section 35 of the Act contains a non obstante clause. Section 41 of the Act amends the statutes specified in the Schedule to the Act and out of the three statutes specified therein, the SICA is one which has been amended by incorporating proviso to the effect that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 635 , in view of provisions of section 35, even if, we do not refer to the provisions of section 41 of the Securitisation Act, which is not only a latter Act, its clear intention is to override SICA in case of conflict. 15. We find from the judgment of the hon'ble Orissa High Court in Noble Aqua P. Ltd. AIR 2008 Orissa 103 ; [2009] 148 Comp Cas 817, that no reference has been made therein to section 35 of the Securitisation Act. Reference has been made to sections 37 and 41 of the Securitisation Act. Omission to refer to section 35 of the Securitisation Act renders the judgment per incuriam. 16. We now come to other judgments relied upon by learned counsel for the petitioner, viz. : (1)Morgan Securities and Credit P. Ltd. v. Modi Rubber Ltd. [2006] 12 SCC 642 ; [2007] 136 Comp Cas 113 ; (2)Maharashtra Tubes Ltd. v. State Industrial and Investment Corporation of Maharashtra Ltd. [1993] 78 Comp Cas 803 ; [1993] 2 SCC 144; (3)Jay Engineering Works Ltd. v. Industry Facilitation Council [2006] 133 Comp Cas 670 ; [2006] 8 SCC 677 ; (4)Sultana Begum v. Prem Chand Jain [1997] 1 SCC 373 ; (5)Shamrao v. Parulekar, AIR 1952 SC 324 ; (6)Sanwarmal Kejriwal v. Vishwa Co-operative Housing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt courts, the court having jurisdiction under special law among the two will prevail to exclude the other, even if the special law was earlier in time. 23. In Fuerst Day Lawson Ltd.'s case AIR 2001 SC 2293, it was observed that violation of award given after the enactment of the Arbitration and Conciliation Act, 1996, will be governed by the said Act, even if arbitration proceedings had commenced earlier. 24. In Bharat Industries's case (supra), this court on facts held that the onetime settlement benefit was wrongly denied to the petitioner in that case. 25. In Everest Wools P. Ltd.'s case [2008] 141 Comp Cas 361 ; [2008] 1 JT 140, the question examined was justification for invoking power to take over a unit in the facts of that case. 26. In K. S. L. and Industries Ltd.'s case [2008] 9 JT 381, the question was about inconsistency in the provisions of the SICA, 1985 and the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (RDB Act). But the two hon'ble judges differed on the question and the matter was referred to the larger Bench. 27. In Transcore's case [2007] 135 Comp Cas 1 (SC); [2007] (1) ISJ (Banking) 1, one of the questions was whether doctrine of e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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