CWP 3897/2010 [1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH SB Civil Writ Petition No.3897/2010 M/s Deepak Casting Limited Versus Sub-Div. Magistrate, Tehsil Tijara, (Alwar) & ors. DATE OF ORDER : 23/03/2010 HON'BLE MR. JUSTICE AJAY RASTOGI Mr. Digvijay Anand, for petitioner. Instant writ petition has been filed by a Sick Industry (petitioner), assailing the proceedings arising from case No.481/2002, pending reference before Board for Industrial & Financial Reconstruction (BIFR). The petitioner company was declared as sick industry on 19th April, 2006 in case No. 481/2002 and the State Bank of Bikaner and Jaipur (SBBJ) has been appointed as operating agency and rehabilitation scheme of the petitioner company is under consideration. Pending proceedings, the BIFR, vide its order dated 16/03/2009 issued directions. The relevant direction as enumerated in sub-clause (ii) of Para 12 is being reproduced as under:- “Executive SDM, Tijara is hereby appointed as facilitator to mediate the settlement between the company and JVVNL. Facilitator will submit its report within 30 days and decision of the facilitator would be binding on both the parties.” While the Facilitator, appointed under the CWP 3897/2010 [2] orders of the BIFR, was trying to settle the issue, a further order was passed by the BIFR on 28/05/2009 in which directions issued under Clause (iv), being relevant for present purpose, is quoted as under:- “The company is directed to negotiate with JVVNL for settlement within 15 days.” But it appears that since no report from the facilitator appointed came within the time framework fixed by the BIFR, in the later proceedings notice has been issued to all the agencies including the facilitator Executive, SDM Tijara vide order dated 19/01/2010. Counsel submits that once the BIFR has modified its earlier order dt.16/03/09, the facilitator Executive SDM Tijara was not holding any jurisdiction to adjudicate the dispute between the petitioner sick industry and JVVNL and it was to be amicably settled by negotiations with JVVNL as directed by the BIFR vide its later order dt.28/05/09 and in such circumstances, the Executive SDM Tijara is not an authority competent to proceed with the matter any further. Counsel further submits that in terms of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 (Act, 1985), once the petitioner company has been registered and reference is pending before CWP 3897/2010 [3] BIFR, no proceedings can be allowed to continue in view of Section 22(1) of the Act,1985 and in support of his submission, Counsel has placed reliance upon judgment of Supreme Court in Maharashtra Tubes Ltd Vs. S.I.I. Corpn. Of Maharashtra Ltd (1993(2) SCC 144). The submission made by counsel is without substance for the reason that after petitioner company was declared as a sick industry and a reference is pending before the BIFR, certainly no proceedings can be allowed to continue in terms of S.22(1) of the Act without prior consent of the BIFR or as the case may be with the Appellate Authority (AIFR), if proceedings are pending thereto. In the instant case, the Executive SDM Tijara was appointed as a facilitator to settle the dispute between sick industry and the JVVNL vide order dated 16/03/2009 and under the directions of the BIFR the facilitator has initiated proceedings, and if the BIFR itself has initiated for settlement by appointing Executive SDM Tijara as a facilitator, certainly it is with the consent of the BIFR in terms of S.22(1) of the Act, 1985. So far as the submission made that the BIFR itself later on modified vide its order CWP 3897/2010 [4] dt. 28/05/2009 and observed to settle with the JVVNL directly within 15 days, the Executive SDM Tijara lost its competence to initiate proceedings any further thereafter, is also of no substance for the reason that the BIFR vide its further order dated 19/01/2010 (Anx.12) has called upon all the agencies, who are involved in the matter and are party to the reference including the Executive SDM, Tijara to submit its report, thus he is proceeding under the directions of the BIFR and not of its own and certainly if the Executive SDM Tijara has been asked to submit its report or give its explanation, he is under legal obligation to submit the required report as desired by the BIFR pending reference and certainly that will facilitate the BIFR in taking its decision for the revival and rehabilitation of the petitioner sick industry. The judgment on which Counsel has placed reliance (1993)2 SCC 144, in the facts of the case, is of no assistance to him. Consequently, the writ petition stands dismissed. [AJAY RASTOGI], J. Raghu/p.4/3897CW2010final.doc