=1= IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION APPEAL APPEAL APPEAL NO.253 NO.253 NO.253 OF 2002 OF 2002 OF 2002 IN IN IN COMPANY COMPANY COMPANY PETITION PETITION PETITION NO.894 OF 1999 NO.894 OF 1999 NO.894 OF 1999 Global Infrastructure and Technologies Ltd. ...Appellants v/s Apple Finance Ltd. ...Respondents Mr Chetan Kapadia with Mr M. Gite i/b M/s Nankani and Associates for Appellants. None for Respondents. CORAM CORAM CORAM : D.K. DESHMUKH AND A.A. SAYED JJ. : D.K. DESHMUKH AND A.A. SAYED JJ. : D.K. DESHMUKH AND A.A. SAYED JJ. DATE DATE DATE : 5TH JANUARY 2009 5TH JANUARY 2009 5TH JANUARY 2009 =2= P.C.- 1. By this appeal, the appellants challenge the order passed by the learned Single Judge of this Court dated 30th January 2002 in company petition No.894 of 1999. That company petition was filed by the respondents alleging that the appellant - Company is liable to be wound up because of its inability to pay its debts. When the petition was before the Court for hearing, it was pointed out to the Court that reference of the appellant - Company has been registered before the Board of Industrial and Financial Reconstruction and therefore, in view of the provisions of section 22 of the Sick Industrial Companies (Special Provisions) Act 1985, the Company Court cannot proceed further with the petition. That objection has been overruled by the learned Single Judge, holding that the appellant - Company was not an Industrial Company registered as such for a period of five years before the reference had been filed. The learned Single Judge held that the Company Court can go into the validity or otherwise of the registration of the reference and if the Company Court finds that the registration of reference is a nullity, then the Company Court can proceed to consider the company petition. When the matter was called, none =3= appears for the respondents. The learned counsel appearing for appellants pointed out that the reference that was registered before the B.I.F.R. has been finally adjudicated by the Board and the final order dated 22nd August 2005 has been made. The contents of paragraph 4 of the said order are relevant which read as under :- "4. Considering the facts on records and the submissions made at today’s hearing, the Bench directed that the objections of the secured creditors at today’s hearing be overruled as the company had provided satisfactory explanations to the various points raised by the Board and as such, there being no valid objections to the company’s sickness from the parties present today and considering that the company fulfilled the various criteria for sickness under the Act, the Bench was satisfied that the company had become a sick industrial company in terms of section 3(1)(c) of the Act and accordingly declared it to be so. On a query from the Bench, the representative of the company indicated that it would not be possible for them to work out a scheme under section 17(2) of the Act on their own. In view of this, the =4= Bench noted that the provisions of section 18 of the Act would have to be explored in public interest in relation to the company. Accordingly, in terms of the powers available under section 17(3) of the Act, the Bench appointed IDBI as the Operative Agency (OA) with directions to prepare a viability study report and revival scheme for the company, if feasible. The OA was directed to keep in view the provisions of section 18 of the Act and the enclosed guidelines while carrying out this exercise. The cut-off date (COD) for the scheme shall be taken as 30.9.2005." . Perusal of the above quoted order shows that the Board has overruled all the objections that were raised and has found that the appellant - Company fulfils various criteria for sickness of the Company and the Bench was satisfied that the Company has become sick in terms of section 3(1)(a) of the Act and accordingly it was declared as sick industrial Company. the learned counsel stated that this order has become final and there is no appeal filed against this order. In our opinion, the final order passed by the BIFR referred to above is a relevant and material subsequent development taking place after the order was made by the learned Single Judge. The fact that the Company was found by =5= the Board after examining all the objections to be a sick industrial undertaking is relevant. In our opinion, therefore, this has to be taken into consideration by the learned Single Judge. In this view of the matter therefore, following order would meet the ends of justice. 2. Appeal succeeds in part and is allowed, the order of the learned Single Judge dated 30th January 2002 is set aside. That company petition is remitted back to the learned Single Judge for de novo consideration and decision in accordance with law. Appeal is disposed off. . Notice of motion No.645 of 2002 does not survive for cosideration. It is disposed off. . Parties to act on the copy of this order duly authenticated by the Associate / Private Secretary of the Court. . Certified copy is expedited. ( D.K. DESHMUKH J.) ( A.A. SAYED J.)