1 20.ca.110.2010.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION skt COMPANY APPLICATION NO. 110 OF 2010 IN COMPANY PETITION NO. 755 OF 2004 IN BIFR NO. 169 OF 1999 BIFR ..Petitioner. M/s. Hari Vishnu Packaging Ltd. ..Applicant vs. The Official Liquidator of Harivishnu Packaging Ltd (in Liqn.) ..Respondent. .... Mr.Prateek Seksaria a/w. Mr. Aman Varma a/w. Ms Shreya Borarke i/by Paras Kuhad & Assoc. for the applicant. The Official Liquidator present. .... CORAM : S.J. KATHAWALLA, J. DATE : 31st MARCH 2010. P. C. 1. In March 1997, the Applicant Company filed a reference with the BIFR which was duly registered as BIFR Case No. 169/1999. Subsequently on 1st November 2000 the BIFR declared the Applicant Company sick within the meaning of the Sick Industrial Companies (Special Provisions) Act, 1985 (SICA). 2 20.ca.110.2010.sxw 2. On 1st October 2003, the BIFR vide its order recommended that the Applicant Company be wound up under section 20(1) of SICA. 3. On 6th November 2003, BIFR wrote a letter/reference to the Registrar, Bombay High Court informing him of the order of the BIFR dated 1st October 2003. 4. On 28th November 2003 an appeal was filed by the Applicant Company before the Appellate Authority for Industrial and Financial Reconstruction (AAIFR) against the order of the BIFR dated 1st October 2003 under section 23 of SICA. 5. Thereafter by an order dated 10th June 2004, this Court ordered the reference to be treated as a petition and accordingly the present Company Petition No. 755 of 2004 was admitted by this Court during the pendency of the appeal before the AAIFR. 6. By an order dated 10th August 2005, the AAFIR stayed the order of the BIFR dated 1st October 2003. 7. By an order dated 28th October 2005 the AAIFR set aside the order of the BIFR dated 1st October 2003 by which a recommendation was made to this Court for winding up of the Applicant Company. 3 20.ca.110.2010.sxw 8. These facts were not brought to the notice of this Court which led to the passing of the order dated 15th October 2008 whereby the Official Liquidator, High Court, Bombay, was appointed as the Provisional Liquidator of the Applicant Company. Thereafter by an order dated 16th July 2009, this Court ordered the Applicant company to be wound up. 9. Since an appeal was pending before the AAIFR as on the date on which the Company Petition No. 755 of 2004 was registered and the recommendation of the BIFR was treated as a petition, the same could not lie in view of the bar contained in Section 22 of the SICA. This law is well settled by judgments of this Court in the case of “ Gear Enterprises v/s Mafatlal Engineering Industries Ltd. (1994 Mh.LJ 348) and In the matter of C J Gelatine Products Limited (1992 MhLJ 800)” . 10. In view of the aforesaid, the Company Application No.110 of 2010 is allowed in terms of prayer clauses (a) to (e). 11. The Applicant Company shall pay to the Official Liquidator a sum of Rs 10,000 towards cost of the present application and further all other costs, charges and expenses incurred by him towards advertising, etc. within a period of 2 4 20.ca.110.2010.sxw weeks from the date of this order. 12. The Company Application is disposed of. 13. The Company Petition is also stands disposed of. [ S.J.KATHAWALLA, J. ]