IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE TWELFTH DAY OF OCTOBER, TWO THOUSAND AND NINE PRESENT THE HON'BLE MRS JUSTICE T.MEENA KUMARI AND THE HON'BLE MR JUSTICE G.V.SEETHAPATHY OSA NO. 21 OF 2009 Between: M/S. Jaykay Engineers, Rep. By its proprietor Smt. Achamma John Kutty w/o late John Kutty ..... APPELLANT AND M/S. Bharat Heavy Plates & Vessels Limited, Rep. By its Managing Director, Visakhapatnam .....RESPONDENT THE HON'BLE SMT. JUSTICE T.MEENA KUMARI AND THE HON'BLE MR JUSTICE G.V.SEETHAPATHY OSA NO. 21 OF 2009 ORAL JUDGMENT: (per the Hon’ble Smt. Justice T.Meena Kumari) This appeal is directed against the order dated 07.07.2009 passed by a learned Single Judge in Company Petition No. 20 of 2006 filed under Sec. 439(1) (b) and Sec. 433(e) and (i) read with Sec. 434(1)(a) and (c) of the Companies Act, 1956 seeking a direction to wound up the respondent company under the provisions of the Companies Act, 1956 and to appoint Official Liquidator attached to this court as the Liquidator of the Company under Sec. 459 of the Companies Act, 1956. The appellant herein was entrusted with the contract of erection, testing and commissioning of machinery, equipment, piping and other miscellaneous items in Oxygen Plant – II of Rurkela Steel Plant by the respondent under agreement dated 10.07.1991, which it has completed and since the respondent paid only a part of the amount leaving a balance of Rs.8,61,552.24 Ps. which was not paid even after persuasion and issuance of notice under Sec. 434 of the Companies Act, the above Company Petition was paid. Before the learned Single Judge it was submitted by the learned counsel for the respondent that from the year 2004 onwards, the company is under reference before the Board for Industrial and Financial Reconstruction (BIFR) which declared the respondent as sick company appointing State Bank of India as operating agency and that a draft scheme had been submitted by the respondent to the Bharath Heavy Electricals Limited, which is taking over the BHPV, as its subsidiary. It is further submitted that the Rehabilitation Scheme is under consideration of the BIFR. The learned Single Judge while observing that the pendency of proceedings before the BIFR, Sec. 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 is barred for proceeding with the winding up has, accordingly, dismissed Company Petition as not maintainable, however, reserving liberty to revive the Company Petition if the rehabilitation scheme proposed by the respondent before BIFR is not accepted. Aggrieved thereby, the present Appeal is filed. It is not in dispute that the respondent Company is declared as a sick company by the Board for Industrial and Financial Reconstruction. It is also not in dispute that a draft rehabilitation scheme has been submitted by the respondent to the Bharath Heavy Electricals Limited, which is taking over the Bharat Heavy Plates & Vessels Limited and the said scheme is under consideration of the BIFR. Therefore, having regard to these undisputed facts, the learned Single Judge is perfectly justified in dismissing the Company Petition reserving liberty to the petitioner to revive the Company Petition in the event the rehabilitation scheme proposed by the respondent before BIFR is not accepted. Having heard the learned counsel for the appellant and the respondent and having perused the order passed by the learned Single Judge, we do not find any illegality in the order impugned. Consequently, the appeal fails and is accordingly dismissed. No order as to costs. ____________________ Justice T.Meena Kumari __________________ Justice G.V.Seethapathy October 3, 2009 MAS.