TMI Blog2012 (7) TMI 1038X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of Section 22 of the SICA, 1985. The material on record clearly establishes that a debt is due and payable by the Company. The Company was granted financial assistance and has utilised it. A statutory notice of winding up was issued. No reply was filed to the Petition for winding up. Even before this Court no submission other than what is recorded hereinabove has been urged. The debt is not in dispute. - Appeal No. 38 of 2011 In Company Petition No. 243 of 2010 With Notice of Motion No. of 2010 - - - Dated:- 20-7-2012 - Dr. D.Y. Chandrachud and R.D. Dhanuka, JJ. For Appellant: Mr. Hemang Engineer with Ms. Archana Singh i/b. M/s. Gordhandas Fozdar For Respondents: Mr. Rafeeq Peermohiddeen with Mr. Shakib Dhorajiwala i/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judge directed that the Petition should be admitted and advertised. 2. At the hearing of these proceedings Counsel appearing on behalf of the Appellant submits that the Company moved a reference before the BIFR under Section 15 of the Sick Industrial Companies (Special Provisions) Act, 1985 (SICA,1985). On this basis, it is urged that the provisions of Section 22 would apply and the hearing of the Appeal which arises from the order of learned Company Judge cannot proceed. 3. Now, it is common ground that the reference before the BIFR was rejected on 4 June 2012. An Appeal has been filed before the AAIFR. 4. The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (Securitisation Act) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no merit in the submission. The first proviso to Section 15 (1) of the SICA, 1985 as introduced by the provisions of the Securitisation Act applies specifically to a situation where financial assets have been acquired by any securitisation company or by a reconstruction company under subsection 1 of section 5 of the Securitisation Act. The second proviso applies to a situation where a reference is pending before the BIFR after the commencement of the Securitisation Act. The second proviso provides the eventuality in which the reference would abate. That eventuality is where the secured creditors representing not less than three fourth in value of the amount outstanding against the financial assistance disbursed to the borrowers have taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Securitisation Act of 2002. In such a case, no reference can lie before the BIFR. The second proviso in contradistinction applies to a situation where a reference has been made validly. Such a reference can abate where measures under Section 13(4) have been taken by the secured creditors representing not less than three fourths in value of the amount outstanding against financial assistance disbursed to the borrower. The first proviso does not contain any reference to a secured creditor at all. It refers to the acquisition of a financial asset by a securitisation or reconstruction company which as noted earlier includes among other things a debt or receivables whether secured or unsecured. As a matter of fact, it may be noted that an expr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not maintainable. 9. For these reasons we do not find any merit in the contention of the Appellant based on the provisions of Section 22 of the SICA, 1985. 10. The material on record clearly establishes that a debt is due and payable by the Company. The Company was granted financial assistance and has utilised it. A statutory notice of winding up was issued. No reply was filed to the Petition for winding up. Even before this Court no submission other than what is recorded hereinabove has been urged. The debt is not in dispute. 11. By an order dated 2 November 2010 an ad-interim order of stay was passed by the Division Bench, during the course of the vacation, subject to the deposit of an amount of ₹ 20 Lakhs, which even ..... X X X X Extracts X X X X X X X X Extracts X X X X
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