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TMI Blog2011 (5) TMI 842X X X X Extracts X X X X X X X X Extracts X X X X ..... ng order dated 8-3-2006 is briefly that the petitioner had filed its reference on 17-10-2003. However, even prior to the said date the Pradeshiya Industrial Investment Corporation of Uttar Pradesh ('PICUP'), which was one of the creditors, had in exercise of its powers under section 29 of the State Financial Corporation Act, 1951 ('SFC Act') sold the plant and machinery of the petitioner in an auction in March-April, 2003. Given these facts the BIFR came to the conclusion that the petitioner was not an industrial undertaking within the meaning of section 3(1)(e ) of SICA. This view has been affirmed by the AAIFR by its order dated 9-3-2011. 3. The petitioner has assailed the impugned order broadly on the following grounds: (i)A conjoint reading of section 3(1)(e), 3(1)(f), 3(1)(o ) and 3(2)(d) of SICA along with section 3(c) of the Industrial Development and Regulation Act, 1951 ('IDR Act') would clearly indicate that the jurisdiction of BIFR is attracted to such a industrial company which carries on manufacturing process in one or more factories. In other words an industrial company would be one which has one or more industrial undertaking(s) which pertain to a scheduled industr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner, thereafter, filed a reference with the BIFR on 17-10-2003. It appears that the petitioner received a letter from the Dy. Distt. Magistrate informing that PICUP had auctioned even the immovable property, that is, land and building situate at C-294, sector-10, Noida, U.P ('land & building'). The petitioner has averred in the writ petition that it had received a communication dated 15-4-2004 from PICUP, informing that it had received a highest bid of Rs. 42 lakhs in respect of the said land and building. 4.3 A reading of the order of AAIFR would show that the petitioner had filed objections with the SDM in respect of the said land and building broadly to the effect that it stood mortgaged to one V.K. Jain and hence, could not be sold. The said objections were rejected and the sale was confirmed on 14-6-2004. As a matter of fact it is further noticed from the impugned order that on 30-6-2004, a sale deed was executed and the transfer of rights in the land has taken place in favour of auctioned-purchaser as far back as on 23-10-2004. Curiously, there is no reference to these dates in the writ petition nor are any averments made referring the veracity of these events. There i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ale has rightly taken place and/or whether the guarantor has co-extensive right of repayment of loan amount and/or whether there is any question of payability of interest, all such questions seem to be diversified academic question before the writ court at present. Moot point for consideration is whether the respondent No. 5 being a private party can be able to retain possession of the property in question in spite of repayment of loan amount by the petitioner company to PICUP and the respondent No. 5 will relinquish possessory right in favour of the petitioners company of the first writ petition due to such payment of loan amount or in favour of the petitioner of the second writ petition, as he claimed that the land and building are not under the mortgage of PICUP, is required to be considered by an appropriate forum having right to determine possessory right, title interest inter se private parties. We cannot advise the writ petitioner/s either to go before the BIFR or its appellate authority or before any forum under the UPZA & LR AR Act or in the civil court with regular or summary suit. It is entirely open for the petitioner to invoke appropriate jurisdiction in such a complex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... twelve (12) months had to be counted from the end of the accounting/financial year and not from the date when the reference was filed cannot lead us astray from the fact that the engagement of the requisite number of workers would only be relevant if otherwise the petitioner on the date of reference was in possession of plant and machinery. The petitioner took its own time in approaching the court by way of a writ petition. The writ petition was filed only in 2005. 6. This brings us to the second contention made on behalf of the petitioner, which is, that the PICUP could not have sold the land and building in an auction carried out in April, 2004 when its reference was admittedly lodged and pending since October, 2003. For this purpose Mr. Sibal had drawn our attention to the letter of PICUP to the Distt. Magistrate calling upon him to provisionally stay the recovery proceedings, in view of the pendency of reference before the BIFR. Mr. Sibal had also drawn our attention to an application dated 26-4-2004 filed by PICUP with BIFR seeking permission for continuing with the sale of the land and building. It was submitted by Mr Sibal that since admittedly no permission was accorded, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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