1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION REVIEW PETITION NO. 4 OF 2009 IN COMPANY PETITION NO. 323 OF 2008 Sharda Synthetics Pvt. Ltd. ..Petitioner versus Sun Industries ..Respondent Mr. Anil Agarwal for Petitioner. Mr. C. D. Abuwala i/b. M/s. Dave & Co. for Respondent. CORAM : S. A. BOBDE, J. DATED : 1ST OCTOBER, 2009. P.C. : 1. This review petition is for review of the order dated 14th August 2008 on the ground that the point in regard to Section 22A of The Sick Industrial Companies (Special Provisions) Act, 1985 raised by the review petitioner and said to have been argued has not been considered. Section 22A of the Act reads as under: “22A. Direction not to dispose of assets.- The Board may, if it is of opinion that any direction is necessary in the interest of the sick industrial company or creditors or 2 shareholders or in the public interest, by order in writing, direct the sick industrial company not to dispose of, except with the consent of the Board, any of its assets- (a) during the period of preparation or consideration of the scheme under section 18; and (b) during the period beginning with the recording of opinion by the Board for winding up of the company under sub-section (1) of section 20 and up to commencement of the proceedings relating to the winding up before the concerned High Court.” 2. According to the petitioner the petitioner cannot be directed to deposit any amount by the court in a petition for winding up in view of the bar under Section 22A against disposal of its assets. There is no dispute that the order has been passed by BIFR on 20th February 2007 to the effect that the company / promoters are directed under Section 22A of the Act not to dispose of any fixed or current assets of the company without the consent of the secured creditor and the BIFR. 3. It is however not possible to accept the contention on behalf of the review petitioner since a bar on the disposal of the assets will not operate as a bar against the power of the court to direct certain amounts to be 3 deposited even if it might result in an order of winding up of the company. The learned counsel for the review petitioner is not in a position to point out any decision of any court interpreting words disposed of in section 22A to include a bar against the power of the court to direct the amount to be deposited in it. There is thus no merit in this contention. 4. The learned counsel for the respondent points out that thereafter i.e. after the order of the BIFR, the review petitioner has in fact made payments to the respondent on account of certain goods which were purchased. It thus appears that the effect of the argument on behalf of the review petitioner is that the company may make payment on its own for goods purchased but there is no power in the court to direct deposit of the amount in respect of alleged liabilities. For this reason also the argument is liable to be rejected. 5. It was next contended on behalf of the review petitioner that certain payments detailed in paragraph 13 of the affidavit in reply dated 11th June, 2008 were made by the review petitioner to the respondent and therefore there is no crystallised, ascertained or liquidated sum of money which is payable by the review petitioner to the respondent. There is no merit in this submission since in the petition for winding up under Section 434 of the Companies Act the court is called upon to take a prima facie view of the matter. A crystallised sum of liability is not a sine qua non for exercise of 4 power under Section 434 of the Companies Act. 6. Having regard to the circumstances of the case and non-compliance of the statutory notice, there is a prima facie inability on the part of the review petitioner company to repay its debts. Determination of the crystallisation of the amount allegedly due is not a sine qua non or a condition precedent before a court could exercise its powers under Section 434. Thus, there is no merit in the review petition, which is hereby dismissed. (S. A. BOBDE, J.)