.[2016] 11S.C.R.419

MIS MADRAS PETROCHEM LTD. & ANR

BIFR& ORS.

(Civil Appeal Nos. 614-615 of2016)

JANUARY 29, 2016

(KURIAN JOSEPH AND R.F. NARIMAN, JJ.]

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) - ss. 13, 35, 37 and 41 - Sick Industrial Companies (Special Provisions) Act, 1985 (SICA) - ss. 15; 22 and 32 - Whether the SARFAESI Act prevails over the SICA Act - Held: SARFAESI Act prevails over the SICA to the extent of inconsistency therewith - Where a secured creditor of a sick industrial company seeks to recover its. debt in the manner provided by s.13 (2) of the SARFAESI Act, such secured creditor may realise such secured debt uls. 13(4) of the SARFAESI Act, notwithstanding the provisions of s.22 of SICA - In a situation where there are more than one secured creditor of a sick industrial company or it has been jointly financed by secured creditors, and at least 60% of such secured creditors in value of the amount outstanding as on a record date do not agree upon exercise of the right to realise their secitrity under the SARFAESI Act, s.22 of SICA will continue to have fall play -Where, uls.13 (9) of the SARFAESI Act, in the case of a sick industrial company having more than one secured creditor or being jointly financed by secured creditors representing 60%. or more in value of the amount outstanding as on a record date wish to exercise their rights to enforce their security under the SARFAESI Act, s.22 of SICA, being inconsistent with the exercise of such rights, will have no play - Where secured creditors representing not less than 75% in value of the amount outstanding against financial assistance decide to enforce their security under the SARFAESI Act, any reference pending under the SICA cannot be further proceeded with and proceedings under the SICA will abate - However, s.22 of the SICA will continue to apply in the case of unsecured creditors seeking to recover their debts from a sick industrial company - This is for the reason that the SICA o; verrides the provisions of the DRT Act - Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (DRT Act) - ss. 17, 18 and 34. ' 419

Sick Industrial Compa1111:' (Special .Provisions) Act, 1985 (SICA) - s.15(1), proviso 3 - Expression "where a reference is pending" in s.15 (1) proviso 3 - Interpretation of - Whether the said expression would include all proceedings before the BIFR or only proceedings at the initial reference stage - Held: s.15(1) proviso 3 covers all references pending before the BJFR, no matter whether such reference is at the inquiry stage, scheme stage, or winding up stage.

Dismissing the appeals, the Court HELD: Whether the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002

prevails over the Sick Industrial Companies (Special Provisions) Act, 1985 1.1 The Sick Industrial Companies (Special Provisions) Act, 1985 prevails in all situations where there are earlier enactments with non obstante clauses similar to the Sick Industrial Companies (Special Provisions) Act, 1985. Where there are later enactments with similar 11011 obstante clauses, the Sick Industrial Companies (Special Provisions) Act, 1985 bas been held to prevail only in a situation where the reach of the 11011 obstante clause in the later Act is limited - such as in the case of the Arbitration and Conciliation Act, 1996 - or in the case of the later Act expressly yielding to the Sick Industrial. Companies (Special Provisions) Act, 1985, as in the case of the Recovery Of Debts Due To Banks And Financial Institutions Act, 1993. [Para 33) [462-A-C) l.2 Section 37 of the Securitisation and Reconstruction of Firiancia.l Assets and Enforcement of Security Interest Act, 2002 does not include the Sick Industrial Companies (Special Provisions) Act, 1985 unlike Section 34(2) of the Recovery of Debts Due To Banks and Financial Institutions Act, 1993. Section 37 of the Securities and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 states that the said Act shall be in addition to and not in derogation of four Acts,

namelyt the Companies Act, the Securities Contracts (Regulation) Act, 1956, the Securities and Exchange Board of India Act, 1992 and the Recovery Of Debts Due To Banks And Financial Institutions Act, 1993. It is clear that the first three Acts deal with securities generally and the Recovery Of Debts Due To

MIS MADRAS PETROCHEM LTD.& ANR. v. BIFR & ORS.

Banks And Financial Institutions Act, 1993 deals with recovery of debts due to banks and financial institutions. Interestingly, Section 41 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 makes amendments in three Acts - the Companies Act, the Securities Contracts (Regulation) Act, 1956, and the Sick Industrial Companies (Special Provisions) Act, 1985. It is of great significance that only the first two Acts are included in Section 37 and not the third i.e. the Sick Industrial Companies (Special Provisions) Act, 1985. This is for the obvious reason that the framers of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 intended that the Sick Industrial Companies (Special Provisions) Act, 1985 be covered by the 11011 obstante clause contained in Section 35, and not by the exception thereto carved out by Section 37.

Further, whereas the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 is expressly mentioned in Section 37, the Sick Industrial Companies (Special Provisions) Act, 1985 is not, making the above position further clear. And this is in stark contrast to Section 34(2) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, which expressly included the Sick Industrial Companies (Special Provisions) Act,

1985. The new legislative scheme qua recovery of debts contained in the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 has therefore to be given precedence over the Sick Industrial Companies (Special Provisions) Act, 1985, unlike the old scheme for recovery of debts contained in the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. [Para 34) (462-E-H; 463-A-D) 1.3 Further, Section 35 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 is not made subject to Section 37 of the said Act. This statutory scheme is at complete variance with the statutory scheme contained in Section 34 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 in which subsection (1) of Section 34 containing the 11011 obstante clause is expressly made subject to sub-section (2) (containing the Sick Industrial Companies (Special Provisions) Act, 1985) by the

A expres!>ion "save as provided under sub-section (2)". [Para 35]

[463-E-F]

1.4 Since neither Section 35 nQr Section 37 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 is subject to the other, B if is necessary to interpret the expression "or any other law for the time being in force" in Section 37. The two apparently conflicting Sections can best be harmonized by giving meaning to both. This can only be done by limiting the scope of the expression "or any other law for the time being in force" contained in Section 37. This expression will therefore have to c be held to mean other laws having relation to the securities market only, as the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 is the only other special law, apart from the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, dealing with recovery of debts due to banks and financial institutions. On this D interpretation also, the Sick Industrial Companies (Special Provisions) Act, 1985 will not be included for the ob\'ous reason that its primary objective is to rehabilitate sick industrial companies and not to deal with the securities market. [Para 36]

[463-F-G; 464-B-D]

E 1.5 The Eradi Committee relating to insolvency and winding up of companies recommended that the Sick Industrial Companies (Special Provisions) Act, 1985 be repealed and the provisions thereunder for revival and rehabilitation should be telescoped into the structure of the Companies Act, 1956 itself.

Pursuant to the Eradi Committee report, the Companies Act was F amended in 2002 by providing for the constitution of a National Company Law Tribunal as a substitute for the Company Law Board, the High Court, the BIFR and the AAIFR. The Eradi Committee Report was further given effect to by inserting Sections 424A to 424H into the Companies Act, 1956 which, with a few changes, mirrored the provisions of Sections 15 to 21 of G. the Sick Industrial Companies (Special Provisions) Act, 1985.

The Companies Amendment Act of 2002 omitted a provision similar to Section 22(1) of the Sick Industrial Companies (Special Provisions) Act, 1985. Consequently, creditors were given liberty to file suits or initiate other proceedings for recovery of dues despite pendency of prnceedings for the revival or rehabilitation

MIS MADRAS PETROCHEM LTD.& ANR. v. BIFR & ORS.

of sick companies before the National Company Law Tribunal.

Close on the heels of the amendment made to the Companies Act came The Sick Industrial Companies (Special Provisions) Repeal Act, 2003. This particular Act was meant to repeal the Sick Industrial Companies (Special Provisions) Act, 1985 consequent to some of its provisions being telescoped into the Companies Act. Thus, the Companies Amendment Act of 2002 and the SICA Repeal Act formed part of one legislative scheme, and neither has yet been brought into force. In fact, even the Companies Act, 2013, which repeals the Companies Act, 1956, contains Chapter 19 consisting of Sections 253 to 269 dealing with revival and rehabilitation of sick companies along the lines of Sections 424A to 424H of the amended Companies Act, 1956.

Conspic.uous by its absence is a provision akin to Section 22(1) of the Sick Industrial Companies (Special Provisions) Act, 1985 in the 2013 Act. However, this Chapter is also yet to be brought into force. These statutory provisions, though not yet brought into force, are also an important pointer to the fact that Section 22(1) of the Sick Industrial Companies (Special Provisions) Act, 1985 has been statutorily sought to be excluded, Parliament veering around from wanting to protect sick industrial companies and rehabilitate them to giving credence to the public interest contained in the recovery of public monies owing to banks and financial institutions. These provisions also show that the aforesaid construction of the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 vis-a-vis the Sick Industrial Companies (Special Provisions) Act, 1985, leans in favour of creditors being able to realize their debts outsidethe court process over sick industrial companies being revived or rehabilitated. [Paras 37, 38 and 40]

[464-G-H; 465-A-C, D-H, 466-A-B]

1.6 It is seen that notwithstanding the non ohstante clauses in Section 22(1) and (4), read with Section 32, Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 will have to give way to the measures taken under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 more particularly referred to in Section 13 of the said Act. [Para 41] (466-F-G] ·

Kihoto Hollohan v. Zachillhu & Ors. (1992) Supp. (2) SCC 651 : 1992 (1) SCR 686; Ravi S. Naik v. Union qf

India & Ors. (1994) Supp. (2) SCC 641 : 1994 (1) SCR 754; and BPL Ltd. & Ors. v. R. Sudhakar & Ors.

(2004) 7 sec 219 : 2004 (2) Suppl. SCR 414 - distinguished.

KSL & Industries Ltd. v. Arihant Threads Ltd. (2015) 1 SCC 166; Mardia Chemicals Ltd. Etc. v. Union of India (UOI) and Ors. tc. Etc. (2004) 4 SCC 311 : 2004 (3)

SCR 982; Maharashtra Tubes Ltd. v. State Industrial And Investment (1993) 2 SCC 144 : 1993 (1) SCR 340; Solidaire India Ltd. v. Fairgrowth Financial Services Ltd. and Ors. (2001) 3 SCC 71 : 2001 (1) SCR 932; Jay Engineering Works Ltd. v. Industry Facilitation Council and Anr. (2006) 8 SCC 677 : 2006 (6) Suppl.

SCR 189; Morgan Securities and Credit Pvt. Ltd. v. Modi Rubber Ltd. (2006) 12 SCC 642 : 2006 (10) Suppl.

SCR 1022; Tata Motors Ltd. v. Pharmaceutical Products of India Ltd. and Anr. (2008) 7 SCC 619 : 2008 (9) SCR 267; NFEF Ltd. v. Chandra Developers (P) Ltd.

(2005) 8 SCC 219 : 2005 (3) Suppl. SCR_747; Raheja

Universal Limited v. NRC Limited and Ors. (2012) 4 SCC 148 : 2012 (3) SCR 388; Union of India v. R, Gandhi, President, Madras Bar Association (2010) 11 SCC 10; Shree Chamundi Mopeds v. Church of South India Trust Association (1992) 3 SCC 1 : 1992 (2) SCR 999 - referred to.

Whether the expression "where a reference is pending" in Section 15 (1) proviso 3 of the Sick Industrial Companies (Special F Provisions) Act, 1985 would include all proceedings before the BIFR or only proceedings at the initial reference stage

2.1 First and foremost, it is important to note that the third proviso to Section 15(1) uses the words "is pending". A reference has been held to be pending the moment it is received by the G Board. If a literal meaning were to be applied to the expression "where a reference is pending", the third proviso to Section 15(1) of the Sick Industrial Companies (Special Provisions) Act, 1985 would be rendered otiose and the purpose for which it was inserted would completely fail. On a liternl 1cading of the

M/S MADRAS PETROCHEM LTD.& ANR. v. BIFR & ORS.

provision, such reference shall abate on steps being taken by the secured creditors to recover their secured debts under Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, the moment a reference is registered. And the moment the reference is registered, an inquiry as contemplated by Section 16 shall be deemed to commence. If that is so, then a reference can never be said to be pending after an inquiry commences. This can never be the case. It is clear, therefore, that the expression "where a reference is pending" would necessarily include the inquiry stage before the Board under Section 16 of the Act. If this be the case, then the reference can be said to be pending not only when an inquiry is instituted, but also after preparation and sanction of a scheme right till the stage the scheme has worked out successfully or till the BIFR gives its opinion to. wind up the company. [Para 48] [470-E-F; 471-B-F] ·

2.2 The expression "reference" used in Section 15(1) proviso 3 is used in contra distinction to the expression "proceedings" in Section 22. "Proceedings" under Section 22 are actions taken against the sick company, whereas "references" are actions initiated by a sick company - it is perhaps for this reason that the third proviso to Section 15(1) uses the expression "reference" instead of the expression "proceedings". [Para 49]

[471-F-G]

2.3 Another important aspect as to the construction of the third proviso to Section 15(1) is the meaning of the expression "such reference shall abate". One of the meanings of the expression "abate" is "to put an end to; to curtail; to , come to naught". A reference can be said to abate in one or several ways.

One obvious way that a reference abates is where the Board, after inquiry, rejects the reference for the reason that the Board is satisfied that the Company is not a sick industrial company as defined under the Act. Another way in which a reference can abate is where a scheme is implemented successfully, and the sick industrial company is taken out of the woods successfully. A third manner in which a reference can abate is when a scheme or scnemes haye failed in respect of the sick industrial company, and in the opinion of the BIFR, the said Company ought. to be ·

A wound up. A fourth instance of abatement is provided by the third proviso to Section 15(1)-0fthe Sick Industrial Companies (Special Provisions) Act, 1985. And that is that a reference which is pending in the sense understood hereinabove shall abate if the secured creditors of not less than 3/4•h in value of the amount

B outstanding against the financial assistance disbursed to the borrower, have taken measures to recover secured debts under Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2fl02. It is clear that the third proviso to Section 15(1) seeks to strike a balance between getting a sick industrial company out of the C woods and secured creditors being able to recover the debt owed to them by such company. The legislature has thought it fit to annul all proceedings before the BIFR only when at least 3/41h of the amount_ outstanding against financial assistance disbursed to the borrower of such secured creditors have taken the measures D listed in Section 13(4) of the Securitisation and Reconstruction of Fio, ancial Assets and Enforcement of Security Interest Act,

2002. The balance is therefore struck by the figure of "not less than 3/4th". The legislature llas inserted this provision so that, if 3/4•h or more of the secured creditors get together to take measures under Section 13( 4) of the Securitisation and E Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, they will not be thwarted by the provisions of Section 22 of Sick Industrial Companies (Special Provisions) Act, 1985, and it will not be necessary for them to obtain BIFR permission before taking any such measures. This construction

of the third proviso to Section 15(1) is in keeping with the march of events post 2002, when the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 came to be enacted. [Para 50) [471-G-H; 472-A-H]

Noble Aqua Pvt. Ltd. v. State Bank of India AIR 2008 Orissa 103 - overruled.

Mis. Salem Textiles Limited v. The Authorised Officer and Ors. AIR (2013) Madras 229 - approved. ' Real Value Appliances Ltd. v. Canara Bank & Ors. _(1998) 5 SCC 554: 1998 (3) SCR 170; Pegasus Assets

MIS MADRAS PETROCHEM LTD.& ANR. v. BIFR & ORS.

Reconstruction P. Ltd. 1i Mis. Haryana Concast Limited & Anr. 2016 (1) SCALE 1; Gujarat Steel Tube Co. Ltd.

v. Virchandbhai B. Shah (1999) 8 SCC 11 : 1999 (3) Suppl. SCR 624; Kai/ash Nath Agarwal v. Pradeshiya Industrial & Investment Corpn. of U.P. Ltd. (2003) 4

SCC 305 : 2003 (1) SCR 1159 - referred to.

Conclusion:

3.1 Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 will continue to apply in the case of unsecured creditors seeking to recover their debts from a sick industrial company. This is for the reason that the Sick Industrial Companies (Special Provisions) Act, 1985 overrides the provisions of the Recovery Of Debts Due To Banks And Financial Institutions Act, 1993. Where a secured creditor of a sick industrial company seeks to recover its debt in the manner provided by Section 13(2) of the Securitisat, ion and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, such secured creditor may realise such secured debt under Section 13(4) of the Securitisation and Reconstruction ofFinancial Assets and Enforcement of Security Interest Act, 2002, notwithstanding the provisions of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985. In a situation where there are more than one secured creditor of a sick industrial company or it bas been jointly financed by secured creditors, and at least 60 per cent of such secured creditors in value of the amount outstanding as on a record date do not agree upon exercise of the right to realise their security under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security

Interest Act, 2002, Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 will continue to have full play.

Where, under Section 13(9) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, in the case of a sick industrial company having more than one secured creditor or being jointly financed by secured creditors representing 60 per cent or more in value of the amount outstanding as on a record date wish to exercise their rights to enforce their security under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security

Interest Act, 2002, Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985, being inconsistent with the exercise of such rights, will have no play. Where secured creditors representing not less than 75 per cent in value of the amount outstanding against financial assistance decide to enforce their security under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, any reference pending under the Sick Industrial Companies (Special Provisions) Act, 1985 cannot be proceeded with further - the proceedings under the Sick Industrial Companies (Special Provisions) Act, 1985 will abate. [Para 54] [474-B-H; 475-A-D]

3.2 In the instant case, the interim order by the lhi High Court would not have the effect of reviving the reference so as to thwart taking of any steps by the respondent creditors in this case under Section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, D 2002. This is because the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 prevails over the Sick Industrial Companies (Special Provisions) Act, 1985 to the extent of inconsistency therewith. Section 15(1) proviso 3 covers all references pending before the BIFR, no

matter whether such reference is at the inquiry stage, scheme stage, or winding up stage. In any case the present reference under Section 15(1) of the Appellant No. 1 company has abated inasmuch as more than 3/4'h of the secured creditors involved have taken steps under Section 13(4) oLthe Securitisation and Reconstruction of Financial Assets and Enforcement of Security .

Interest Act, 2002. [Para 55] [475-D-G]

(201~) 1 sec 166

2004 (3) SCR 982

Case Law Reference

referred to

referred to

1993 (1) SCR 340

2001 (1) SCR 932

referred to

referred to

Para IO

Para 20

Para25

Para 26

Para 27

Para 28

2006 (6) Suppl. SCR 189

2006 (10) Suppl. SCR 1022

H '

referred to

referred to

MIS MADRAS PETROCHEM LTD.& ANR. v. BIFR & ORS. 429

2008 (9) SCRl67 referred to Para30 A

2005 (3) Suppl. SCR 747 referred to Para30 . ,_ ,: _,,,

-" 2012 (3) SCR388. referred to Para31

(2010) 11 sec 10 referred to Para39 ..

1992 (2) SCR 999 referred to Para43 B

1992 (1) SCR 686 distinguished Para45

1994 (1) SCR 754 distinguished Para 45 •

'V, 2004'(2) Suppl. SCR 414 distinguishe.d Para45

AIR (2013) Madras 229 approved Para46. c

AIR 2008 Orissa 103 overruled Para 46

1998 (3) SCR 170 referred to Para48

2016 (1) SCALE 1 referred to Para51 D 1999 (3) Suppl. SCR 624 referred to Para 52

2003 (1) SCR 1159 referred to Para 53

CIVIL APPELLATE JURISDICTION: CiviIAppeal Nos. ?14-615 of2016.

from the Judgment and Order dated 24.07.2008 of the High Court E

of Delhi at New Delhi in Writ Petition No. 48-49 of2004.

C. N. Sree Kumar, Amit Sharma, P. R. Navak; Rahul Kumar, Advs. for the Appellants; . · •

C. A. Sundaram , Subranionium Prasad, Sr. Advs, Pankaj Jain, F Bijoy Kumar .Jain, Ms. Rohiti.i Musa, Abhishek Gupta,. Zafar Inayat, Suresh Dutt Dobhal, Gauiav Agrawal, Yugank Goel, Ms. Sonakshi D_himan, Himanshu Munshi, Mis. Temple Law Finn, Vikas Mehta, Vipin 'Kumar Jai, Advs. for the Respondents. .

The Judgment of the Court was delivered by G'

--R. F. NARIMAN, J. I. Leave granted.

2. The present appeals raise interesting questions on the interplay between the Sick Industrial Companies (Special Provisions) Act, 1985 and the Securitisation and Reconstruction of Fmancial Assets and

A Enforcement of Security Interest Act, 2002. The facts in appeals aris g out of Special Leave Petition (Civil) Nos.26170-26171 of 2008 are as follows. ·

3. The net worth of the AppellantNo. l Company, having eroded completely, the appellant No. I company filed a reference under Section B 15(1) of the Sick Industrial Companies (Special Provisions) Act, 1985 before the BIFR, which was registered as BIFR Case No.115 of 1989.

On 13.12.1989, after making an inquiry under Section 16(1) of the Sick Industrial Companies (Special Provisions) Act, 1985, the Appellant company was declared sick and ICICI was appointed as the Operating Agency to formulate a rehabilitation scheme. On 3.7.1991, the first C rehabilitation scheme prepared by the Operating Agency was sanctioned, which envisaged the takeover of the appellant company by one Mahavir "Plantation Limited - i.e. appellant No.2. The first scheme was finally declared a failure, and the Appellant No. I company, on 17.1.1995, was directed to submit a fresh, comprehensive, revised rehabilitation scheme D which was duly circulated. Objections to the said scheme were heard by the BIFR and the scheme finally sanctioned was in the form of a change of management of the appellant no. I company subject to various modifications to be carried out. After the Appellant No. I company's management changed hands, the second scheme, after being reviewed · frqm time to time, was declared as failed on 16.5.2000. Despite efforts E by the Operating Agency to attempt to revive the company, all such efforts failed, and ultimately, on 30.4.2001, BIFR, on the basis of the recommendation of the Operating Agency, formed-a primafacie opinion that the appellant No. I company should be wound up under Section 20( I) of the Sick Industrial Companies (Special Provisions) Act, 1985.

F On 27.7.2001, the BIFR confirmed its primafacie opinion after noting that the appellant No. I company had been enjoying protection under the Sick Industrial Companies (Special Provisions)Act, 1985 forthe last 12 years. There being no acceptable viable rehabilitation proposal after the failure of two schemes, the appellant no. I company was not likely to make its net worth exceed its accumulated losses, and therefore BIFR G recommended to the High Court of Bombay thl!_t the said company be wound up. On 4.2.2002, appellant No.l's challenge to the BIFR order was dismissed by the AAIFR. -

4. While matters stood thus, ICICI issued a notice dated 20.11.2002 under Section 13(2) of the Securitisation and Reconstruction of Financial H ~

MIS MADRAS PETROCHEM LTD.& ANR. v. BIFR & OR'S. 43'1

[R. F. NARIMAN, J.]

Assets and Enforcement of Security Interest Act, 2002 to the appellant . A - No.1 company and followed it up with a possession notice dated 9 .5 .2003.

On 8.8.2003, ICICI issued a sale notice for and on behalf of all the secured creditors of the appellant No.1 company. Meanwhile, appellant Nos. 1 & 2 filed a writ petition before the Delhi High Court being Writ __ Petition Nos.48-49 of2004 challenging the AAIFR order dated 4.2.2002 _and th~ BIFR-0rderdated 25.7.2001. On 7.1.2004, the Delhi High Court B stayed both the orders, which stay continued until 24.7.2008, when, by the impugtied judgment, the Writ Petition was dismissed.

5. Meanwhile, the sale notice of8.8.2003. was challenged before the DRT by the appellants. The said challenge was unsuccessful, as a C result of which an appeal was filed before the DRAT, which, by its order dated 30;6.2005, upset the DRT order and set aside the sale noice.

However, by a judgment of the Madras High Court, in Ii challenge to the aforesaid order dated 30.6.2005, the Madras High Court set aside the DRAT order. The sale of movable assets for a sum of Rs.4.65 crores was a)so confirmed by the Madras High Court in favou~ of one M/s D Rahamath Steel. Vide the said order the Madras High Court also permitted the creditors of the Company to proceed with the sale of its immovable property subject to a minimum reserve price ofRs.25 crores.

This order was never challenged and has attained finality. v>

6. Meanwhile, based on a winding up proceeding by :Mis BHEL, ~· E an unsecured creditor, and another winding up proceeding based on the opinion of the BIFR under Section 20 of the Sick Industrial Companies (Special Provisions) Act, 1985, the Bombay High Court wound up the appellant No. I company. ' .

7. While matters.stood thus,, the Delhi Ifigh Court passed the F impugned order on 24. 7.2008, as has been stated hereinabove, in which it was of the view that Section 15(1) proviso 3 of the Sick Industriai Companies (Special Provisions) Act, 1985, when construed to include

aliprocedings under the Smk Industrial Companies (Special Provisions) Act, 1985, would make the present proceedings under the Sick Industrial Companies (Special Provisions) Act, 1985, abate on the facts of this G case." Ultimately, in this view of the matter, and differing with a judgment of the Orissa High Court, the Delhi l:ljgh Court disposed of the appellants' writ petition as having become infructuous.

8. Appeals have been filed against the said order by the present appellants whiCh appeals, as has been stated hereinabove, raise interesting H

A questions oflaw on the interplay of the Sick Industrial Companies (Special Provisions) Act, 1985 with the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.

9. A few subsequent events also need to be stated for the sake of completion. On 20.11.2008, the Bombay High Court modified its B order dat_ed 30.8.2007 and restrained the Official Liquidator from taking possession of the secured assets of the company, and permitted the credit ors to pursue their remedies under. the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Inteest Act, 2002. Mis. Alchemist ARC Ltd. issued a sale notice on behalf of C all the creditors of the appellant No.1 company for a sum ofRs.222.59 crores on 6.4.2013. Appellant No.2, being the corporate guarantor of the appellant no. l company, filed an appeal challenging the sale notice of6.4.2013. On 13.5.2013, ORT Chennai dismissed this petition. Vide an order dated I 93~2014, the DRAT, Chennai, in an appeal made to it, directed, by way of an interim order, that appellant No.2 pay a sum of D Rs.53.77 crores within the time stated therein. This DRAT order was challenged before the Madras High Court which, by its order dated 21.4.2014, refused to interfere with the said order dated 19.3.2014, and granted some additional time to appellant No.2 to pay the said amount of Rs.53.77 crores. We have been informed that the said amount haSJ1ot

been paid till date. The appellant No.2 has challenged this order of 21.41Q)7l before this Court. However, the said SLP is lying in defect as on date despite the expiry of more than one and a. half years.

10. Mr. C.N. Sreekumar, learned counsel appearing on behalf of the appellant No. I company, submitted before us that the effect of the. interim order of 7 .1.2004 of the Delhi High Court is that the reference made by the appellant No. I company gets revived. He further submitted that no winding up order could be made in view of such revival, and that

uch orders are therefore 11011 est, and th~ present appeals cannot be regarded as infructuous. He added that Section 22(1) of the Sick Industrial Companies (Special Provisions) Act, 1985 would automatically come into play to protect the assets of the appellant No. l company. He also submitted before us, that in any case, regard being had to the object of the Sick Industrial Companies (Special Provisipns) Act, 1985, it would override the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. For this purpose, he relied

011 a judgment by this Court in KSL & Industries Ltd. v. Arihant

MIS MADRAS PETROCHEM LTD.& ANR. v. BIFR & ORS.

[R. F. NARIMAN, J.]

Threads Ltd., (2015) 1 SCC 166, which held that the Sick Industrial Companies (Special Provisions) Act, 1985 has overridden the Recovery Of Debts Due To Banks And Financial Institutions Act, 1993. The said Act, being a predecessor to the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, and dealing with the same subject matter as the Securitisation and Reconstruction of Financial Assets and Enforce~nt of Security Interest Act, 2002 - namely, recovery of debts due to banks and financial institutions, would lead to the conclusion that the 2002 Act is also overridden. He further contended that Section 37 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 expressly refers to the Recovery Of Debts Due To Banks And Financial Institutions Act, 1993, and since Section 34(2) of the Recovery Of Debts Due To Banks And Financial Institutions Act, 1993, refers to the Sick Industrial Companies (Special Provisions) Act, 1985, Section 3 7 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 should also be construed so as to include a reference to the Sik Industrial Companies (Special Provisions) Act, 1985. His further contention is that on a true construction of Section 15( I) proviso 3 of the Sick Industrial Companies (Special Provisions) Act, 1985, the Orissa High Court is correct and that since the expression "reference" would only include the initiai stage of fifing and registration of a reference before the !31FR, such stage having gone long ago, the proceedings before BIFR are very much alive and have not abated.

11. Shri C.A. Sundaram, learned senior counsel, appearing on behalf ofM/s Alchemist Asset Reconstruction Company Limited, which is subst.ituted in place of respondent Nos.2,3,4,6 and 9, has submitted that the effect of the interim order dated 7.1.2004 does not revive the reference of the appellant No. I company before BIFR. For this purpose he relied upon Shree Chamandi Mopeds Ltd. v. Church of South India Trust Assn., (1992) 3 SC:C I. He also submitted that in any event the Securitisation and Recunstruction of Financial Assets and Enforcement of Security Interest Act, 2002 would override the provisions of the Sick Industrial Companies (Special Provisions) Act, 1985, so that even if the stay order dated 7 .1.2004 had the effect of reviving the reference, that in itself would not restrain the secured creditors from proceeding under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, ;!002, nor wouldit

A render the winding up order passed by Bombay High Court non est. He also submitted that a large number of judgments ofvarrous High Courts ha.ye taken the"' iew which is taken in the impugnedjudgrnen_t_,; md that fhe expression "reference" would include all stages of a proceeding under the Sick Industrial Companies (Special Provisfons) Act, 1985

B including the stage of operation .of a scheme. For this purpose; in particular, he relied heavily on a full bench decision of the Madras High Court in ... M/s. Salem Textiles Limite!,1 v. The'A:utborized Officer and Ors., reported in AIR 20!3 Madras 229. He also argued that since " . the Recovery Of Debts Due To Banks And Financial Institutions Act,

1993 expressly named the Sick Industrial Companies (Special Proyisions) Act, 1985 in Section 34(2), the Sick Industrial Companies (Special Provisions) Act, 1985 obviously overrode thaf'Act. What is significant is that.the corresponding section, namely, Section 3 7, of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, expressly omits any reference to the Sick Industrial Companies (Special Provisions) Act, 1985, making it clear that the Securitisation and Reconstruction ofFinancial Assets and Enforcement of'Securi-ty Interest Act, 2002 would prevail over the Sick Industrial . , Companies (Speial Provisions) Act, 1985. That being the case, he argued that this Court's judgment in KSL &'Industries Ltd. Vs. Arihant- Tbreads Ltd., (2015) I SCC 166, is, therefore, clearly.distinguishable: .

He also argued that at the end of the day, since the movable property of the appellant No. I company had been so1d off, and since various High Courts - including Bombay and._ Madras - have passed a number. of orders, both winding up the company and dismissing petitions challenging the action of his client in proceedings under the S.ecuritisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, all that remains is sale of the immovable property of the, appellant No. I Company and that, therefore, nothing really remains in these appeals, which have becometnfructuous.

Discussion:- ·

12. The argu_ments of counse"I hav.e been wide fanging, but at the end of the day various Sections of three statutes have to be interpreted by this Court. Before embarking on a consideration of the arguments and the interpretation of these provisions, it will be important to first set them out. ----

MIS MADRAS PETROCHEM LTD.& ANR. v. BIFR & ORS. 435

[R. F. NARIMAN, J.]

THE

SI.CK

INDUSTRIAL

COMPANIES

(SPECIAL A

PROVISIONS) ACT, 1985

"Section 15. Reference to Board

(1 )When an industrial company has become a sick industrial company, the Board of Directors of the company, shall, within sixty days from the date 0f finalisation of the duly audited accounts of the company for the financial year as at the-end of which the company has become a sick industrial company, make a reference to.the Board for determination of the measures which sha11 be adopted with respect to the company:

Provided that if the Board of Directors had sufficient reasons .even before such finalisation to form the opinion that the company had become a sick industrial company, the Board pf directors shall, within sixty days after it has formed such opinion, make a reference to the Board for the determination of the measures which shall be adopted with reospect to the company:

Provided further that no reference.shall be made to the Board for Industrial and Financial Reconstruction after the commencement of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, where financial assets have been acquired by any securitisation company or reconstruction company und.er sub-section (1) of section 5 of that Act:

Provided also that on or after the commencement of the Securitisation and ReconstructiotJ, qf Financial Assets and

,,.~Enforcement of Security Interest Act, 2002, where a reference F is pending before the Board for Industrial and Financial _, Reconstruction, such reference shall abate if the secured creditors, representing not less than three-fourth in value of the amount outstanding against financi~I assistance disbursed to the _borrower of such secured creditors, have taken any measures to reco.vef thei~ secured debt under sub-section ( 4) of section 13 G ofthatAcL ..

Section 22 .. Suspension of legal proceedings, contracts, etc.

(1 )Where in respect ofan industrial company, an inquiry under H

section 16 is pending or any scheme referred to under section I 7 is under preparation or consideration or a sanctioned scheme is under implementation or where an appeal under section 25 relating to an industrial company is pending, then, notwithstanding, anything contained in the Companies Act, 1956 (l of 1956) or any other law 01;...the memorandum and articles of association of the industrial company or any other instrument having effect under the said Act or other law, no proceedings for the winding up of the industrial company or for execution, distress or the like against any of the properties of the industrial company or for the appointment of a receiver in respect thereof and no suit for the recovery of money or for the enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial comp.any shall lie or be proceeded with further, except with the consent of the Board or, as the case may be, the Appellate Authority.

(2) Where the management of the sick industrial company is taken o, ver or changed in pursuance of any scheme sanctioned under section 18 notwithstanding anything contained in the Companies Act, 1956 (l of 1956), or any other law or in the memorandum and articles of association of such company or any instrument having effect under the said Act or other law

a) it shall not be lawful for the shareholders of such company or ; any other person to nominate or appoint any person to be a director of the company;

b) no resolution passed at any meetihg of the shareholders of such company shall be given effect !O unless approved by the Board.

(3) where an inquiry under section 16 is pending or any scheme referred to in section I 7 is under preparation or during the period] of consideration of any scheme under section 18 or where any such scheme is sanctioned thereunder, for due implementation of the scheme, the Board may by order declare with respecMo the sick industrial compa11y concerned that the operation of all . or any of the contracts, assurance of property~ agreements, settlements, awards, standing orders or other instrument's in force, to which such sick industrial company is a party or which may be applicable to such sick industrial company immediately before

MIS MADRAS PETROCHEM LTD.& ANR. v. BIFR & ORS.

[R. F. NARIMAN, J.]

the date of such order, shall remain suspended or that all or any of the rights, privileges, obligations and liabilities accruing or arising thereunder before the said date, shall remain suspended or shall be enforceable with such adoptions and in such manner as may be specified by the Board.

Provided that such declaration shall not be made for a period exceeding two years which may be extended by one year, at atime so," however, that the total period shall not exceed seven years in the aggregate.

( 4) Any declaration made under sub-section (3) with respect to. a sick industrial .company shall have effect notwithstanding anything contained in the Companies Act, 1956 (1 of 1956), or any other law, the memorandum and articles of association of the company or any instrument having effect under the said Act, or other law or any agreement or my decree or order of a court, tribunal, officer or other authority or of any submission, settlement or standing order and accordingly,-

( a) any remedy for the enforcement of any right, privilege, obligation and liability suspended or modified by such declaration, and all proceedings relating thereto pending before any court, tribunal, officer or other authority shall remain stayed or be continued subject to such declaration; and ·

(b) on the declaration ceasing to have effect-

(i) any right, privilege, obligation or liability so remaining suspended or modified shall become revived and enforceable as ifthe declaration had never been made; and

(ii) any proceeding so remaining stayed shall be pr.oceededwith, subject to the provisions of any law which may then be in force, from the stage which had been reached when the proceedings became stayed.

(5) In corriputing the period oflimitation for the enforcement of G any right, privilege, obligation or liability, the period during which it or the remedy for the enforcement thereof remains suspended under this section shall be excluded.

Section 32. Effect of the Act on other laws .

( 1) The provisions of his Act and of any rules or schemes made H

thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law except the provisions of the Foreign Exchange Regulation Act, 1973 (46of1973) and the Urban Land (Ceiling and Regulation) Act, 1976 (33of1976) for the time being in force or in the Memorandum or Articles of Association of an industrial company or in any other instrument having effect by virtue of any law other than this Act.

(2) Where there has been under any scheme under this Act an amalgamation of a sick industrial company with another company; the provisions of section 72Aofthe Income-tax A.ct, 1961 (43 of 1961 ), shall, subject to the modifications that the power uf the Central Government under that section may be exercised by the Board without the Central Government under that section may be exercised by the Board without any recommendation by the specified authority referred to in that section, apply in relation to such amalgamation as they apply in relation to tlie amalgamation of a company owning an industrial undertaking with another company.

The Recovery Of Debts Due To Banks And Financial Institutions Act, 1993

Section 17. Jurisdiction, powers and authority of Tribunals.

(l)A Tribunal shall exercise, on and from the appointed day, the jurisdiction, powers and autHority to entertain and decide applications from the banks and financial institutions for recovery of debts due to such banks and financial institutions.

(2) An Appellate Tribunal shall exercise, on and from the appointed day, the jurisdiction, powers and authority to entertain appeals against any order made, or deemed to have been made, by a Tribunal under this Act.

Section 18. Bar of Jur.isdiction.

G On and from the appointed day, no court or other authority shall have, or be entitled to exercise, any jurisdiction, powers or authority (except the Supreme Court, and a High Court exercising jurisdiction under articles 226 aod 227 of the Constitution) in relation to the matters specified in section 17.

MIS MADRAS PETROCHEM LTD.& ANR. v. BIFR & ORS. 439

. [R. F. NARIMAN, J.]

34. Act to have over-riding effect.- A

(1) Save as provided under subsection (2), the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in an)""instrument having effect by virtue of any law other than this Act.

(2) The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of, the Industrial finance Corporation Act, 1948 (15 of 1948), the State Financial Corporations Act, 1951 (63of1951), the Unit Trust oflndiaAct, 1963 (52of1963), the Industrial Reconstruction Bank oflndia C.

Act, 1984 ( 62 of 1984 ), the Sick Industrial Companies (Special Provisions) Act, 1985 (1 ofJ986) and the Small Industries

___ Development Bank of India Act, 1989 (39 of 1989).

The Securitisation And Reconstruction Of Financial Assets And Enforcement Of Security Interest Act, 2002 D

Secti9-n 13. Enforcement of security interest

(1) Notwithstaning anything contained in section 69 or section 69A of the Transfer of Property Act, 1882 ( 4 of 1882), any security interest created in favour of any secured creditor may be enforced, without the intervention of court or tribunal, by such E creditor in accordance with the provisions of this Act.

(2)-Where any borrower, who is under a liability to a secured creditor under a security agreement, makes any default in repayment of secured debt or any instalment thereof, and his account in respect of such debt is classified by the secured F creditor as non-performing asset, then, the secured creditor.may require the bon; ower by notice in writing to discharge in full his liabilities to the secured creditor within sixty days from the date of notke failing which the secured creditor shall be entitled to e:'ercise all or any of.the rights under subsecti.on ( 4).

(3) The notice referred to in sub-section (2) shall give details of the amount payable by the borrowet and thesecured assets intended to be enforced by the seured creditor in the evnt of non-payment of secured debts by the borrower.

(3 A) I_f, on receipt of the notice under sub-section (2), the borrower makes any representation or raises any objection, the secured creditor shall consider such representation or objection and if the secured creditor comes to the conclusion that such representation or objection is not acceptable or tenable, he shall communicate within one week of receipt of such representation or objection the reasons for non-acceptance of the representation or objection to the borrower: PROVIDED that the reasons so communicated or the likely action of the secured creditor at the stage of communication of reasons sl; iall not confer any right upon the borrower to prefer an application to the Debts Recovery Tribunal under section 17 or the Court of District Judge under section 17 A.

(4) In case the borrower fails to discharge his liability in full within the period specified in sub-section (2), the secured creditor may take recourse to one or more of the following measures to recover his secured debt, namely:-

(a) take possession of the secured assets of the borrower including the, right to transfer by way of lease, assignment or sale for realising the secured asset; ·

. (b) take over the management of the business of te borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset: PROVIDED that the right to transfer by way oflease, assignment or sale shall be exercised only where the substantial part of the business of the borrower is held as security for the debt: PROVIDED FURTHER that where the management of whole of the business or part of the business is severable, the secured creditor shall take over the management of such business of the borrower which is relatable to the security for the debt.

(c) appoint any person (hereafter referred to as the manager), to manage the ecured assets the possession of which has been taken over by the secured creditor;

(d) require at any time by notice in writing, any person who has acquired any of the secured assets from the borrower and

MIS MADRAS PETROCHEM LTD.& ANR. v. BIFR & ORS. 441

[R. F. NARIMAN, J.]

from whom any. money is due or may become due to the A borrower, to pay the secured creditor, so much of the money as is sufficient to pay the secured debt.

(S) Any payment made by any person referred to in clause ( d)

of sub-section ( 4) to the secured creditor shall give such person a valid discharge as ifhe has made payment to the borrower.

(SA) Where the sale of an immovable property, for which a reserve price has been specified, has been postponed for want of a bid of a~ amount not less than such reserve price, it shall be

lawful for any officer of the secured creditor, if so authorised by the secured creditor in this behalf, to bid for the immovable c property on behalf of the secured creditor at any subsequent sale.

(SB) Where the secured creditor, referred to in sub-section (SA), is declared to be the purchaser of the immovable property at any subsequent sale, the amount of the purchase price shall be D adjusted towards the amount of the claim of the secured creditor for which the auction of enforcement of security interest is taken by the secured creditor, under sub-section (4) of section 13.

(SC) The provisions of section 9 of the Banking Regulation Act, 1949(10of1949) shll, as far as may be, apply to the immovable E property acquired by secured creditor under sub-section (SA).]

(6)Any-transfer of secured asset after taking possession thereof -or take over of management under sub-section (4),. by the secured creditor or by the manager on behalf of the secured creditor shall vest in the transferee all rights in, or in relation to, the secured asset transferred as if the transfer had been made by the owner of such secured asset.

") ' .

(7) Where any action hasbeen taken against a borrower. under the provisions of sub-section ( 4 ), all costs, charges and expenses which, in the opinion of the secured creditor, have been properly incurred by him or any expenses incidental thereto, shall be recoverable from the borrower and the money which is received by the secured creditor shall, in the absence of any contract tci the contrary, b'e held by him in trust, to be applied, firstly, in payment of such costs~ charges and expenses and secondly, in discharge

'-B

of the dues of the secured creditoFand t.he residue of the money so received shall be paid to the person entitled thereto in accordance with his rights and interests,

(8) If the dues of the secured creditor together with all .costs, charges and expenses incurred by him are tendered to the secured creditor at any time before the date fix'ed for sale or transfer, the secure-d asset shall not be sold or transferred by the secured creditor, and no further tep shall be taken by him fot transfer or sale of that secured asset.

(9) In the case offinaning ofa financiai'asset by more than one secured creditors or joint financing of a financial asset by secured creditors, no secured creditor shall be entitled to exercise any or all of the rights conferred on him under or pursuant to SJ.lb-section ( 4) unless exercise of such right is agreed upon by the secured• creditors representing not less than sixty per cent in value of the amount outstanding as on a record date and such action shall be binding on all the secured creditors:

" PROVIDED that in the case of a company in liquidation, the amount realised from the sale of secured assets shall be . distributed in accordance with the pi:pvisions of section 529A of the Companies Act, 1956 (1 of 1956):

PROVIDED FURTHER that in the case of a companx being wound up on or after the commencement ofthisAct, the.secured • creditor of such compi.my, who opts to realise his security instead of relinquishing his security and proving his debt under proviso to sub-section (1) of section 529 of the Companies Act, 1956 (1 of 1956), may retain the sale proceeds of his seeured assets after depositing the workmen's dues with the liquidator in accordance with the pro"'.isions of section 529A of that Act:

PROVIDED ALSO that the liquidator referred io in the second , proviso shall intimate the secured creditors the workmen's dues in accordance with the provisions of section 529A of the Companies Act, 1956 (I of 1956) and in.cae such workmen's dues cannot be ascertained, the liquidator shall intimate the estimated amount of workmen's dues under that section tothe secured creditor and in such case the secured creditor may retain the sale :proceeds of the secured assets after depositing the

MIS MADRAS PETROCHEM LTD.& ANR. v. BIFR & ORS. 443 -

[R. F. NARIMAN, J.]

amount of such estimated dues with the liquidator: A

PROVIDED ALSO that in case the secured creditor deposits the estimated amount of workmen's dues, such creditor shall be liable to pay the balance of the workmen's dues or entitled to receive the excess amount, if any, deposited., by the secured creditor with the liquidator:

B ·-

PROVIDED ALSO that the secured creditor shall furnish an undertaking to the liluidator to pay the balance of the workmen's dues, if any. . ~\_ Explanation: For the purposes of this sub-section,- (a) "record date:' means the date agreed upon by the secured creditors representing not less than three-fourth in value of the amount outstanding on such date; (b) "amount outstanding" shall include principal, interest and any other dues payable by the borrower to the secured creditor in respect of secured asset as per the books of account of the secured creditor.

(I 0) Where dues of the secured creditor are not fully satisfied with the sale proceeds of the secured assets, the secured creditor may file an application in the form and manner as may be prescribed to the Debts Recovery Tribunal havingjurisdiction or a competent couri:, as the case may be, for recovery of thellilance amount from the borrower.

(11) Without prejudice to the rights conferred on the secured creditor under or by this section, the secured creditor shall be entitled to ytoceed against the guarantors or sell the pledged assets without first taking any of the measures specified in clauses

(a) to {cl) of subsection (4) in relation to the secured assets under this Act. ·

(12) The rights of a secured creditor under this Act may be exercised by one or more of his officers authorised in this behalf in such manner as may be prescribed.

(13) No borrower shall, after receipt ofnotice referred to in subsection (2), transfer by way of sale; lease or otherwise (other than in the ordiyary course of his business) any of his secured assets referred to in the notice, without prior written consent of the secured creditor. '

I 444

Section 35. T, he provi.sions of this Act to override other laws The provisions of this Act shall have effect, notwithstanding . anything inconsistent therewith contained in anyother law for the time being in force or any instrument having effect by virtue of any such law.

Section 3~. Application of other laws not barred The.provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of, the Companies Act, 1956 (I of 1956), the Securities Contracts (Regulation) Act, 1956 ( 42 of 1956), the Securities and Exchange Board of India Act, 1992 ( 15 of 1992), the Recovery of Debts Due to Banks and Financial Institutions Act; 1993 ( 51 ofl 993) or any other law for the time being in force.

Section 41. Amendments of certain enactments

The enactments specified in the Schedule shall be amended in the manner specified therein."

THE SCHEDULE

(Section 41)

Year Act Short title Amendment No. 1956 I The Companies Act In section 4A in sub-section ( 1) _ 1956 after clause (vi) insert the following:-- "(vii) the securitisation company or the reconstruction company which has obtained a certificate of registration under sub-section (4) of section 3 of the Securitisation and Reconstruction ofFinancial Assets and Enforcement of Securitv Interest Act 2002". 1956 42 The Securities In_ section 2 in clause {h) after Contracts sub-clause ( ib) insert the (Regulation) Act following:--" (ic) security 1956 receipt as defined in.ciause (zg) ofsection2 of the Securitisation and Reconstruction ofFinancfal Assets and Enforcement of - Security Interest Act 2002". ·

M/S MADRAS PETROCHEM LtD.& ANR. v. BIFR & ORS. 445

[R. F: NARIMAN, J.] ...

"1986 1 The Sick Industrial In section 15 in sub-section (I) Companies (Special after the proviso insert the ' ProvisioIB) Act following:-- "PROVIDED 1985 FURTHER that oo reference shall be made to the Board. for . In:lustrial and Finan:ial

Reconstruction after the

' . commen:ement oftlie Securitisation and Reconstruction of Finan:ial

-Assets and Enforcement of . Security Interest Act 2002 where financial assets have been - acquired by any securitisation company or reconstruction company under sub-section ( 1) of section 5 of that Act:

__ PROVIDED Atso-thaton or after the commencement of the Securitisation and Reconstruction of Finan:ial Assets and Enforcement of Security Interest Act 2002 where

~ ln'Serence is pending before lhe ' Boar'd for Industrial and

' .

Financial Reconstruction such reference shall abate if the secured creditor$ representing not less than three-fourth in value of the amount outstanding against financial assistance

;,,· disbursed to theborroweiof such secured creditors have taken any measures to recover their secured debt under sub" section (4) of section 13 of that Act"

13. It is important at this stage .to refer to the genesis of these three legislations. Each of them deals wtih different aspects ofrecovery of debts due to banks and financiai'instTttions. Two of them refer to creditors' interests and how. best to deal with recovery of outstanding loans and advances made by them on-the one hand, whereas the Sick Industrial Companies (Special Provisi.ons) Act, 1985, on the other hand,

.. F

deals with certain debtors which are sick industrial companies (i.e. companies running industries named in the schedule to the Industries (Development and Regulation) Act, 1951) and whether such "debtors" having become "sick", are to be rehabilitated. The question, therefore, is whether the public interest in recovering debts due to banks and financial institutions is to give way to the public interest in rehabilitation of sick industrial companies, regard being had to the present economic scenario in the country, as reflected in Parliamentary Legislation.

14. We begin, first, with the Sick Industrial Companies (Special Provisions) Act, 1985. The Statement of Objects and Reasons for this Act reads as under:

"THE SICK INDUSTRIAL COMPANIES (SPECIAL

PROVISIONS) ACT, 1985

STATEMENT OF OBJECTS AND REASONS

The ill effects of sickness in industrial companies such as loss of production, loss of employment, Joss of revenue tel the Central and State Governments and Jocking up ofinvestible funds and financial institutions are of serious concern to the Government and the society at large. The concern of the Government is accentuated by the alarming increase in the incidence of sickness in industrial companies. It has been recognized that in order to fully utilize the productive industrial assets, afford maximum protection of employment and optimize the use of the funds of the banks and financial institutions, it would be imperative to revive and rehabilitate the potentially viable sick industrial companies as quickly as possibl~. It would also be equally imperative to salvage the productive assets and realize the amounts due to the banks and financial institutions, to the extent possible, from the non-viable sick ing:ustrial companies. through liquidation of those companies.

It has been the experience that the existing institutional arrangements and procedures for revival and rehabilitation of potentially viable sick industrial companies are both inadequate and time-consuming. A multiplicity oflaws and agencies makes the adoption of coordinated approach for dealing with sick industrial companies difficult. A need has, therefore, been felt to enact in public interest a legislation td provide for timely~

MIS MADRAS PETROCHEM LTD.& ANR. v. BIFR & ORS. 447

[R. F. NARIMAN, J.]

determination by a body of experts of the preventive, ameliorative, A remedial and other measures that would need to be adopted with respect to such companies and for enforcement of the measures considered appropriate with utmost practicable despatch.

The salient fea_tures_ofthe Bill are-

(i) application of the legislation to the industries specified in the First Schedule to the Industries (Development and Regulation) Act, 1951, with the initial exception of the scheduled industry relating to.ships and other vessels drawn by power, which may however be brought within the ambit of the legislation in due course;

(ii) Identification of sickness in an industrial company, registered for not less than seven years, ori the basis of the symptomatic indices of cash losses for two consecutive financial years andaccumulated losses equalling or exceeding the net worth of the

company as at the end of the second financial year; D

(iii) the onus ofreporting sickness and impending sickness at the stage of erosion of fifty per cent. or more of the net worth of an industrial company is being laid on the Board of Directors of such company; where the Central Oovernment or the Reserve Bank is satisfied that an industrial company has become sick, it . may make a reference to the Board, likewise if any State Government, scheduled bank or public financial institution having an interest. in an industrial company is satisfied that the industrial company has become sick, it may also make a reference to the Board;

(iv) establishment of Board consisting of experts in various relevant fields -with -powers to enquire into and determine the incidence of sickness in i_ndustrial companies and devise suitable remedial measures through appropriate schemes or other proposals-and for proper implementation thereof; r

(v) constitution of an Appellate Authority consisting of persons who are or have been Supreme Court Judges, senior High Court Judges and Secretaries to _the Government of India, etc., for hearing appeals against the order of the Board."

15. A cursory reading of the Act shows that a Board for Industrial

and Financial Reconstruction is set up by the Act, be10re which references are made. Such references can be made under Section 15 of the Act, not only by an industrial company as defined, which, as has been stated above, is a company which runs any of the industries specified in the first schedule to the Industries (Development and Regulation) Act, 1951, but also by the Central or State Government, or public financial institution, or State level institution, or a seheduled bank, as the case may be. Such reference can only be made ifthe company concerned.has turned sick i.e; it has to be a company running an industry mentioned in the first schedule to the Industries (Development and Regulation)Act, 1951, and must be a company registered for not less than 5 years, which has at the end of a11y financial year accumulated losses equal to or exceeding its entire net worth. An inquiry into the working of such "sick industrial company" is to be made by the said Board on receipt of a reference or upon application or suo motu. If the Board is satisfied that the Company has indeed become a sick industrial company, the Board shall decide as to whether it is practicable for the Company to make its net worth positive within a reasonable time. This it may do under Section 17 of the Act, by order under sub-section (2) of Section 17. If this is not possible, then the Board may appoint an Operating Agency who will prepare a scheme for rehabilitation mentioned in Section 18 which the Board may then sanction.

The scheme may provide for all or any of the things mentioned in the said Section, and finally, the scheme fnay work successfully, resulting in the Company's net worth trning positive, or may be unsuccessful. hi the event of it being unsuccessful, the Board may modify such scheme or ask for the preparation o(a new scherrie. If, at the end of the day, the first scheme or any successive schemes ultimately fail, the Board has then to be of the opinion that such Company is not likely to make its net worth positive, and that therefore it is to forward its opinion under Section 20 of the Act to the concerned High Court to proceed with the winding up of the said company. Section 22, which is of crucial importance in the working of the Act, suspends various legal proceedings, contracts etc., while a reference before the Board is pending,' for the duration of G the inquiry to be made and/or scheme prepared and finally sanctioned, and forthe entire period of the working of the said scheme. Both Section 22(1) and (4) contain non obstante clauses overriding inter alia the Companies Act and any other.'-law. In order to better implement}he provisions of this Act, Section 32 also contains a non obstante clause 9verriding all other laws including Memoranda and Articles of Association H

MIS MADRAS PETROCHEM LTD.& ANR. v. BIFR & ORS.

[R. F. NARIMAN, J.J

of the industrial company or any other instrument having effect by virtue of any other law, except the Forei&n Exchange Regulation Act of 1973 and The Urban Land (Ceiling and Regulation) Act, 1976.

16. While this Act had worked for a period of about 7 years, the Recoxery of Debts Due to Banks and Financi'al Institutions Act, 1993 was brought into' force, pursuant to various Committee reports. The

Statement of Objects and Reasons for this Act reads as follows:- . . .

"STATEMENT OF OBJECTS AND REASONS OF THE

RECOVERY OF DEBTS DUE . TO BANKS AND

FINANCIAL INSTITUTIONS ACT, 1993

Banks and financial institutions at present experience considerable difficulties in recovering loans and enforcement of securities charged with them. The existing procedure for recovery of debts due to the banks and financial institutions hablocked asignificant portion of their funds in unproductive assets, the value of which deteriorates with the passage of time. The Committee on the Financial System headed by Shri M. Narasimham has considered the setting up of the Special Tribunals with special powers for adjudication of such matters and speedy recovery as critical to the successful implementation of the financial sector reforms.

An urgent need was, therefore, felt to work out a suitable mechanism through which the dues to the banks and finaneial in, stitutions could be realized without delay. In 1981, a Committee under the Chairmanship ofShri T. Tiwari had examined the legal and other difficulties faced by banks and financial institutions and suggested remedial measures including changes in law. The Tiwari Committee had also suggested setting up of Special Tribunals Tor recovery of d_ues of the banks and financial institutions by following a summary procedure. The setting up of Special Tribunals will not only fulfill a long-felt need, but also will be an important step in the implementation of the Report of Narasimham Committee. Whereas on 30th September, 1990 more than fifteen lakhs of cases filed by the public sector banks and about 304 cases filed by the financial institutions were pending in various courts, recovery of debts involved more than Rs.5622 crores in dues of Public Sector Banks and about Rs.391 crores of dues of the financial institutions. The locking up of such huge amount f public money in litigation prevents proper utilisation

A and recycling of the funds tor the development of the country.

The Bill seeks to provide for the establishment of Tribunal and Appellate Tribunals for expeditious adjudication and recovery of debts due to banks and financial institutions. Notes on clauses explain in detail the provisions of the Bill."

17. The Recovery Of Debts Due To Banks And Financial Institutions Act, 1993 took away the jurisdiction of the courts and vested this jurisdiction in tribunals established by the Act so as to ensure speedy recovery of debts due to the banks and financial institutions mentioned therein. This Act also included one appeal to the Appellate Tribunal, and transfer of all suits or other proceedings pending before any court to tribunals set up under the Act. The Act contained a 11011 obstmlfe clause in Section 34 stating that its provisions will have effect notwithstanding anything inconsistent contained in any other law for the time being in force or in any instrument having effect by virtue of any other law. In the year 2000, this Act was amended so as to incorporate a new subsection (2) in Section 34 together with a saving provision in sub-section (I). It is of some interest to note that this Act was to be in addition to and not in derogation of various Financial Corporation Acts and the Sick

Industrial Companies (Special Provisions) Act, 1985. Clearly, therefore, the object of the 2000 amendment to the Recovery of Debts due to Banks and Financial Institutions Act, 1993 was to make The Sick Industrial Companies (Special Provisions) Act, 1985 prevail over it.

18. Regard being had to the poor working of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 was brought into force in the year 2002. The statement of objects and reasons for this Act reads as under:-

"STATEMENT OF OBJECTS AND REASONS OF THE

SECURITISATION AND RECONSTRUCTION OF

FINANCIAL ASSETS AND ENFORCEMENT OF

SECURITY INTEREST ACT, 2002

The financial sector has been one of the key drivers in India's efforts to achieve success in rapidly developing its economy.

While the banking industry in India is progressively complying with the intemational prudential norms and accounting practices, there are certain areas in which the banking and financial sector

MIS MADRAS PETROCHEM LTD.& ANR. v. BIFR & ORS.

[R. F. NARIMAN, J.]

do not have a level playing field as compared to other participants in the financial markets in the world. There is no legal provision for facilitating securitisation of financial assets of banks and financial institutions. Further, unlike international banks, the banks and financial institutions in India do not have power to take possession of securities and sell them, Our existing legal framework relating to commercial transactions has not kept pace with the changing commercial practices and financial sector reforms. This has resulted in slow pace ofrecovery of defaulting loans and mounting levels ofnonperforming assetS'ofbanks and financial institutions. Narasimham Committee I and II and Andhyarujina Committee constituted by the Central Government for the purpose of examining banking sector reforms have considered the need for changes in the legal system in respect of these areas. These Committees, inter alia, have suggested enactment of a new legislation for securitisation and empowering banks and financial institutions to take possession of the securities and to sell them without the intervention of the court. Acting on these suggestions, the Securitisation-- and Reconst1 uction of Financial Assets and Enforcement of Security Interest Ordinance, 2002 was promulgated on the 21st June, L.002 to regulate securitisition and reconstruction of financial assets and enforcement of security interest and for matters connected therewith or incidental thereto. The provisions of the Ordinance would enable banks and financial institutions to realise long-term assets, manage problem of liquidity, asset liability mismatches and improve recove1y by exercising powers to take possession of securities, sell them and reduce nonperforming assets by adopting measures for recovery or reconstruction.

2. It is now proposed to replace the Ordinance by a Bill, which, inter alia, contains provisions of the Ordinance to provide for-

( a) registration and regulation of securitisation companies or

reconstruction companies by the Reserve Bank of India; G

(b) facilitating securitisation of financial assets of banks and financial institutions with or without the benefit of underlying securities;

(c) facilitating easy transferability of financial assets by the securitisation company or reconstruction company to acquire H

A financial assets of banks and financial institutions by issue of . debentures or bonds or any other security in the nature of a debenture; -

(d) empowering securitisation companies' or reconstruction c.ompanies to raise funds by issue of se.curity receipts to qualified B 'institutional buye_rs;

( e) facilitating reconstruction of financial assets acquired by exercising powers of enforcement of securities or change of management or other powers which are proposed to be conferred on the banks and financial institutions;

(t) declaration of any securitisation company or reconstruction company registered with the Reserve Bank oflndia as a public financial institution for the purpose of section 4A of the Companies Act, 1956;

(g) defining 'security interest' as any type of security including mortgage and change on immovable prqp!;!rties given f()r due repayment of any financial assistance given by any bank or financial institution;

(h) empowering banks and financial institutions to take possession of securities given for financial assistance and sell or lease the same or take over management in the event of default, i.e. cla:ssifi, cation of the borrower's account as nonperforming asset in accordance wiih the directions given or under guidelines i5'!rued. by the Reserve Bank oflndia from time to time;

(i) the rights of a secured creditor to be exercised by one or more of its officers authorised in this behalf in accordance with the rules made by the Central Government;

G) an appeal against the action of any bank or financial institution to.the concerned Debts Recovery Tribunal and a second appeal to the Appellate-Debts Recovery Tribunal; ·

(k) setting up or causing to. be set up a Central Registry by the Central Government for the purpose of registration of transactions relating to securitisation, asset reconstruction and creation of security interest;

(I) application of the proposed legislation initially to banks and

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[R. F. NARIMAN, J.] .

financial institutions and.mpowennent of the Central Government A to extend the application of the proposed legislation to non-banking financial companies and other entities;

(m) non-application of.t)le proposed legisll!, tion to security interests in agricultural lands, loans not exceeding rupees one lakh and cases where eighty per cent, pf the loans are repaid by the B borrower.

3. The Bill seeks to achieve the above objects."

19. This Act was brought into force as a _result of two committee reports which opined that recovery of debts due to banks and financial institutions was not moving as speedily as expected, and that, therefore, certain other measures would have to be put in pl.ace in order that these banks and financial institutions would better be able to recover debts owing to them.

20. In a challenge made to the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act; 2002 in Mardia Chemicls J; itd_. Etc. v. Union of India (UOI) and Ors.

Etc. Etc., (2004) 4 SCC 311, this Court went into the circumstan.ces under which the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest A ct, 2002 was enacted, as follows:-

"Some facts which need to be taken note of are that the banks E and the financial institutions have heavily financed the petitioners and other industfies. It is also a fact that a large sum of amount remains unrecovered. Normal process of recovery of debts through courts is lengthy and time ta:ken is not suited for recovery of such dues. For financial assistance rendered to the industries by the financfal institutions, financial liquidity1s essential failing which there is a blockade of large sums of amounts creating circumstances which retard the economic progress followed by

a large number of other consequential ill effects. Considering all these circumstances, the Recovery of Debts Due to Banks and Financial Institutions Act was enacted in 1993 but as the figures . G show it also did not bring the desired results. Though it is submitted on behalf of the petitioners that it so happened due to inaction on the part of the Governments in creating .Debts Recovery Tribunals and appointing presiding officers, for a long time. Even after leaving that margin, it is to ?e noted tha~ things H

in the spheres concerned are desired to move faster. In the present-day global economy it may be difficult to stick to old and conventional methods of financing and recovery of dues. Hence, in our view, it cannot be said that a step taken towards securitisation of the debts and to evolve means for faster recovery of NPAs was not called for or that it was superimposition of undesired law since one legislation was already operating in the field, namely, the Recovery of Debts Due to "Banks and Financial Institutions Act. It is also to be noted that the idea has not erupted abruptly to resort to such a legislation. It appears that a thought was given to the problems and the Narasimham Committee was constituted which recommended for such a legislation keeping in view the changing times and economic situation whereafter yet another Expe1t Committee was constituted, then alone the impugned law was enacted. Liquidity of finances and flow of money is essential for any healthy and growth-oriented economy . . But certainly, what must be kept in mind is that the law should not be in derogation of the rights which are guaranteed to the people under the Constitution. The procedure should also be fair, reasonable and valid, though it may vary looking to the different situations needed to be tackled and object sought to be achieved.

In its Second Repo1t, the Narasimham Committee observed that NP As in 1992 were uncomfortably high for most of the public sector banks. In Chapter VIII of the Second Report the Narasimham Committee deals about legal and legislative framework and observed:

"8.1. A legal framework that clearly defines the rights and liabilities of parties to contracts and provides for speedy resolution of disputes is a sine qua non for efficient trade and commerce, especially for financial intermediation. In our system, the evolution of the legal framework has not kept pace with changing commercial practice and with the financial sector reforms. As a result, the economy has not been able to reap the full benefits of the reforms process. As an illustration, we could look at the scheme of mortgage in the Transfer of Property Act, which is critical to the work of financial intermediaries .... "

One of the measures recommended in the circumstances was to vest the financial institutions through special statutes, the power

.. \

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(R. F. NARIMAN, J.J

of sale of the assets without intervention of the court and for A reconstruction of assets. It is thus to be seen that the question of non-recoverable or delayed recovery of debts advanced by the banks or financial institutions has been attracting attention and the matter was considered in depth by the Committees specially constituted consisting of the experts in the field. In the prevalent B situation where the amounts of dues are huge and hope of early recovery is less, it cannot be said that a more effective legislation for the purpose was uncalled for or that.it could not be resorted to. It is again to be noted that after the Report of the Narasimham Committee, yet another Committee was constituted headed by Mr. Andhyaruj ina for bringing about the needed steps within the c

/ legal framework. We are therefore, unable to find much substance in the submission made on behalfofthe petitioners that while the Recovery of Debts Due to Banks and Financial Institutions Act was in operation it was uncalled for to have yet another legislation for the recovery of the mounting dues. Considering the totality D of circumstances and the financial climate world over, if it was thought as a matter of policy to have yet speedier legal method to recover the dues, such a policy decision cannot be faulted with nor is it a matter to be gone into by the courts to test the legitimacy of such a measure relating to financial policy. r We may now consider the main enforcing provision which is E

pivotal to the whole controversy, namely, Section 13 in Chapter III of the Act. It provides that a secured creditor may enforce any security interest without intervention of the court or tribunal irrespective of Section 69 or Section 69-A of the Transfer of Property Act where according to sub-section (2) of Section 13, F the borrower is a defaulter in repayment of the secured debt or any instalment of repayment and further the debt standing against him has been classified as a non-performing asset by the secured creditor. Sub-section (2) of Section 13 further provides that before taking any sieps in the direction ofrealizing the dues, the secured G creditor must serve a notice in writing to the borrower requiring him to discharge the liabilities within a period of60 days failing which the secured creditor would be entitlrd to take any of the measures as provided in sub-section (4) of Section 13; It may also be noted that as per sub-section (3) of Section 13 a notice given to the borrower must contain th~_ details of the amounts H

A payable and the secured assets against which the secured creditor proposes to proceed in the event of non-compliance with the notice given under sub-section (2) of Section 13." [at para 34,36

and 38] ·

_21. The "pivotal" provision namely Section 13 of the said Act makes it clear that banks and financial institutions would riow no longer .have to wait for a Tribunal judgment under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 to be able to recover debts owing to them. They could, by following the procedure laid down in

Section 13, take direct action against the debtOrs by taking possession of secured assets and selling them; they could also take over the management of the business of the borrower. They could also appoint any person to manage the secured assets possession of which has been taken over by them, and could require, at any time by notice in writing to any person who has acquired any of the secured assets from the borrower and from whom any money is due or may become dpe from the borrower, to D pay the secured creditor so much of the money as is sufficient to pay the secured debt.

22.In order to further the objects of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, the Act contains a 11011 obstante clause in Section 3 5 and E also contains various Acts in Section 3 7 which are to be in addition to and not in derogation of the Securitisa:fion and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. Three of these Acts, namely, the Companies Act, 1956, the Securities Contracts (Regulation) Act, 1956 and the Securities and Exchange Board oflndia

F Act, 1992, relate to securities generally, whereas the Recovery Of Debts

De To Banks And Financial Institutions Act, 1993 relates to recovery of debts due to banks and financial institutions. Significantly, under Section 41 of this Act, three Acts are, by the schedule to this Act, amended. We are concerned with the third of such Acts, namely, the Sick Industrial Companies (Special Provisions) Act, 1985, in Section 15(1) of which

 G two provisos have been added. It is the correct interpretation of the second of these provisos on which the fate of these appeals ultimately

hangs:~-

23.It is in this background that we need to embark on the next step, namely, to consider the following two questions which arise on the H facts of this case: -

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'[R. F. NARIMAN, J.]

(1) Whether the Securitisation and Reconstruction of Financial Assets A and Enforcement of Security Interest Act, 2002 prevails over the Sick Industrial Companies (Special Provisions) Act, 1985; and

(2) Whether the expression "where a reference is pending" ih Section

15(1) proviso 3 of the Sick Industrial Companies (Special Provisions) Act, 1985 would include all proceedings -before the BIFR or only

B proceedings at the initial, reference stage.

24. The occasion for answering question no. 1 is Shri Sreekumar's argument that the effect of the Delhi High Court's stay order dated

7. l.2004 is that the reference before the BIFR springs back into life, and with it Section 22(1) of the Sick' Industrial Companies (Special c Provisions) Act, 1985. it is also occasioned by a further argument that the winding up order passed by_the Bombay High Court dated 30.$.2007 being in the teeth of the stay order and Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985, is 11011 est and therefore tile appe_als before this Court have not become infructuous. If Shri C.N.

Sreekumar is right; then after enactment of the Securitisation and D Reconstruction-of Financial Assets and Enforcement of Security Interest Act, 2002, bec.ause of the presence of Section 22(1 )of the Sick Industrial Companies (Special Provisions) Act, 1985, none of the measurestaken by the secured creditors under Section 13 of Securitisation Act can be proceeded with becauseof the bar contained' in Section 22(1) of the E Sick Industrial Companies (Special Provisios) Act, 1985. Hence, we have first to determine whether the Secuiitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act; 2002 overrides Section 22 of the Sick Indu_strial Companies (Special Provisions) Act, l _,,_ 1985 as such overridi9g is only to the extent of the inconsistency between the two enactments. Such inconsistency is found in Section 22(1) of F the Siek Industrial Companies (Special Provisions)Act, 1985, by which any action taken to realize debts owing to the secured creditors of sick industrial companies cannot be proceeded with under the 2002 Act unless the BIFRaccords permission under Section 22(1) of the Sick Industrial Companies (Special Provisions) Act, 1985.

25.It is now necessary to undertake a survey of the case law laid down by this court in relation to the Sick Industrial Companies (Special Provisions) Act, 1985 and its relation with other enactments. In an early judgment, namely, Maharashtra Tubes Ltd. v. State Industrial And Investment, (1993) 2 SCC 144, this Court had to deal with the Sick H

A Industrfal Companies (Special Provisions) Act, 1985, vis-a-vis the State Financial Corporations Act, 1951. In paragraph 9 of the judgment it was held that both Acts were special Acts, the 1951 Act dealing with the recovery of debts of a company pre-sickness and the 1985 Act dealing with su.ch recovery post-sickness. Since both the Acts contained non

obstante clauses, it was held that the 1985 Act, being later in point of time, would prevail over the 1951 Act.

26. On the other hand, in Solidaire India Ltd. v. Fairgrowth Financial Services Lt!). and Ors., (200 I) 3 SCC 71, it was the Special Courts (Trial of Offences Relating to Transactions in Securities), Act, 1992 which came up for consideration vis-a-vis the Sick Industrial Companies (Special Provisions) Act, 1985. In paragraphs 9 and I 0 of this Court's judgment, this Court noted that both Acts were special Acts.

In a significant extract from a Special Court judgment, which was approved by this Court, it was stated that The Special Courts Act, 1992, being a later enactment and also containing a 11011 obstante clause, would D prevail over the Sick Industrial Companies (Special ProvisiQns)Act, 1985.

Had the legislature wanted to exclude the provisions of the Sick Industrial Companies (Special Provisions) Act, 1985, from the ambit of the said Act, the legislature would specifically have so provided (Emphasis ours).

The fact that the legislature did not specifically so provide necessarily means that the legislature intended that the provisions of the said Act were to prevail over the provisions of the Sick Industrial Companies (Special Provisions)Act, 1985. In short, when property ofnotified persons under the Special Courts Act, 1992 stands attached, it is only the Special Court which can give directions to the custodian under the said Act as to disposal of such property of a notified party. The legislature expressly overrode Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 and permitted the custodian to give directions under Section 11 of the Special Courts Act, 1979, notwithstanding Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985.

27.In Jay Engineering Works Ltd. v. Industry Facilitation G Council and Anr., (2006) 8 SCC 677, this time this Court had to deal with the Interest on Delayed Payment to Sm.all Scale and Ancillary Industrial Undertakings Act, 1993 vis-a-vis the Sick Industrial Companies (Special Provisions) Act, 1985. Both Acts contained 11011 obstante clauses. This Court referred to the 1994 amendment to the Sick Industrial Companies (Special Provisions) Act, 1985 and stated that the amending H

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[R. F. NARIMAN, J.]

Act being later than the 1993 Act, the Sick Industrial Companies (Special A Provisions) Act, 1985 would, therefore, prevail. (See paragraph 27).

28. Similarly, in Morgan Securities and Credit Pvt. Ltd. v.

Modi Rubber Ltd., (2006) 12 SCC 642, the Arbitration and Conciliation Act, 1996 contained a non obstante clause in Section 5 thereof. Despite this being a later Act, vis-a-vis the Sick Industrial Co"lnpanies (Special B Provisions) Act, 1985, this Court held that the Sick Industrial Companies (Special Provisions) Act, 1985 would prevail, inasmuch as the non obstante clause contained in the Arbitration and Conciliation Act, 1996 had only a limited application - it applied only insofar as the extent of judicial intel"Vention in arbitration proceedings is concerned. (See c paragraph nos. 66 and 68).

29.In an interesting concurringjudgment, Balasubramanyan, J., in paragraph 76 held:

"Occasions are not infrequent when not so scrupulous debtors approach B.I.F.R. to stall the proceedings and to keep their D creditors at bay. The delay before the B.I.F.R. is sought to. be taken advantage of. The Parliament' has apparently taken note of this and has repealed SICA by the Sick Industrial Companies (Special Provisions) Repeal Act, 2003. The vacuum, thus created has been filled by an amendment to the Companies Act. But, so E far, the provisions of the Amending Act and the Companies Act introduced, have not been brought into force. It appears to be

O time to consider whether .. these enactments should not be notified."

30. Similarly, in Tata Motors Ltd. v. Pharmaceutical Products of India Ltd. and Anr., (2008) 7 SCC 619, it was held, following the .F judgment in NFEF Ltd. v. Chandra Developers (P) Ltd., (2005) 8 SCC 219, that the Companies Act being a getteral enactment would have to give wayto the Sick Industrial Companies (Special Provisions) Act, 1985 which is a later and special enactment. (see paragraphs 22 to 24).

31. And in Raheja Universal Limited v. NRC Limited and Ors., (2012) 4 SCC 148, the Transfer of Property Act, 1882 had to yield to the Sick Industrial Companies (Special Provisions) Act, 1985 being a general Act, as against the Sick Industrial Companies (Special Provisions) Act, 1985 which was a special Act, together with a reading of the non H

obstante clause contained in the Sick Industrial Companies (Special Provisions) Act, 1985 (see paragraphs 91to93).

32. In KSL & Industries Ltd. v. Arihant'Threads Ltd., (2015) , I SCC 166, it was the turn of the Recovery Of Debts Due To Banks And Financial Institutions Act, 1993 vis-a-vis the Sick Industrial Companies (Special Provisions) Act, 1985. This Court in resolving the controversy in favour of the , Sick Industrial Companies (Special Provisions) Act, 1985 held:- '

"Sub-section (2) was added to Section 34 of the RDDB Act w.e.f. 17-1-2000 by Act I of2000. There is no doubt that when an Act provides, as h!!re, that its provisions shall be in addition to and not in derogation of another law or laws, it means that the legislature intends that such an enactment shall coexist along _ with the other Acts.'It is clearly not the intention of the legislature, in such a case, to annul or detract from the. provisions of other laws. The term "in derogation of' means "in abrogation or' repeal o/'. The Black's Law Dictionary sets forth the following ineaning for "derogation":

"derogation.-The partial repeal or abrogation of a la, w by a later Act that limits its scope or impairs its utility and force."

It is clear that sub-section (I) contains a non obstante clause, which gives the overriding effect to the RDDB Act. Sub-section

(2) acts in the nature of an exception to such an overriding effect.

It states that this overriding effect is in relation to certain laws and that the RDDB Act shall be in addition to and not in abrogation of, such laws. SICA is undoubtedly one such law.

There is no doubt that both are special laws. SICA is a special

__ Jaw, which deals with the reconstruction of sick companies and matters incidental thereto, though it is general as regards other matters such as recovery of debts. The RDDB Act is also a sgecial law, which deals with the recovery of money due to banks or financial institutions, through a special proedure, though it may be general as regards other matters such as the reconstruction of sick companies which it does not even _specifically deal with. Thus the purpose of the two laws is different.

Parliament must be deemed to have had knowledge of the earlier

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[R. F. NARIMAN, J.]

law i.e. SICA, enacted in 1985, while enacting the RDDB Act, A

1993. It is with a view to prevent a clash of procedure, and the possib!lity of contradictory orders in regard to the same entity and its properties, and in particular, to preserve the steps already taken for reconstruction of a sick company in relation to the. properties of such sick company, which may be charged 'as . B security with the banks or financial institutions, that Parliament has specifically enacted sub-section (2) .. SICA had been enacted in respect of specified and limited companies i.e. those which owned industrial undertakings specified in the Schedule tot/le IDR Act, as mentioned earlier, whereas the RDDB Act deals with all persons, who may have taken a loan from a bank or a C financial institution in cash or otherwise, whether secured or unsecured, etc.

In view of the observations of this Court in the decisions referred to and relied on by the learned counsel for the parties we find that, the purpose of the two enactments is entirely differentAs obse'rved earlier, the purpose of one is to provide ameliorative measures for reconstruction of sick companies, and the purpose of the other is to provide for speedy recov.ery of debts of banks and financial institutions. Both the Acts are "special;' in this sense.

However, witli reference to the specific purpose of reconstruction of sick companies, SICA must be held to be a special laW; though it may be considered to be a general law in relation to the recovery of debts. Whereas, the RDDB Act may be considered to be a special law in relation to the recovery of debts and SICA may be considered to be a general law in this regard. For this purpose we rely on the decision in L/C v. Vl}ay Bahadur [( 1981) 1 SCC 315 : 1981 SCC (L&S) 111]. Normally the latter of the two would prevail on the principle that the legislature was aware that

it had enacted the earlier Act and yet chose to enact tqe subsequent Act with a non obstante clause. In this case. however, the expt"fss' intendment of PaRiament in the non. . 0 obstante clause of the RDDB Act does not permit us to take that view. Though the RDDB Act is the later enactment. subsection (2) of Section 34 thereof specifically provides that the provisions of the Act or the Rules made.thereunder shalt be in addition to. and not in derogation of. the other laws mentioned therein including SICA." [at paras 36, 39, 40, and 48] H

A .

33. A con, spectus._ofthe aforesaid decisions shows that the Sick

Industrial Copanies (Special Provisions) Act, 1985 prevails in all situations where there are earlier enaetments with 11011 obstante clauses , similar to the Sick Industrial Companies (Special Provisions) Act; i 985. ; Where thei:e are later enactments with simila~ 11011 obsta11te clauses, the Sick Industrial Companies (Special Provisions) Act, 1985 has been held to prevail only in a sjgifion where the reach of th"e 11011 obsta11te clause in the later Act is limited - such as in the case of the Arbitration arid, Conciliatin Act, 1 ~96 - or in the case of the later Act expressly xieldingto the Sick IndustrfaJ Companies (Special Provisions)Act, 1985, as in the case of the Recovery Of Debts Due To Banks And Financial Institutions Act, 1993. Where such is not the case, as in t4e case of : Special Courts Act, 1992, it is the Special ourts Act, 1992 which was , . held to prevail over the Sick Industrial Companies (Special Provisions)

Aet, -1985. .

34.,,..We have now to undertake an analysis of the Acts in question .

. D The first thing to be noticed is the difference between Section 3 7 of the Secufitisationand ReconstructionofFinancial Assets and Enforcement . of Security Interest Act, 2002 !'Ind section 34 of the Recovery Of Debts

 Due Tri Banks And Financial Institutions Act, 1993. Section 37 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 does not include the Sick Industrial

ompitnies (Special Provisions) Act, 1_985 un1ike Section 34(2) of the Recov¢ry, ofDebts Due To Banks and Fncial InstitµtionsAct, 1993.

Sectiop 37 of the Securities and Reconstrutf~ Of Financial Ass.ets and . Enforcsment of Security Interest Act, 2002. states that the .said Act shall

be in aditicm to and not in derogation of fotir Acts, namely, the Companies .

'.F Act, tile Securitie's Contracts (Reguiation)Act, 1956, the Securities and Exchange Board of hldia Act, 1992 am! the Recovery Of Debts 'Due To

.. Banks And Financial-Institutions Act, 1993. It is clear that the first three

, Acts deal with sec.urities generally and the Recovery Of DebtsDue To Banks And Financiallnstitutions Apt, 1993 deals with recovery-of debts due to banks and financial institutions. Interestingly, Section 41 of the G Securltisationand Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 makes amendments in three Acts - the Companies Act, the Securities Contracts (Regulation) Act, 1956, and the Sick Industrial Companies (Special Provisions) Act, 1985. It is of great signifipance. that only-the first two Acts are included in Section 3 7 If and not the third i."e. the Sick Industrial Companies (Sp_ecial Provisions) : . . . . . ' .

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Act, 1985. This is for the obvious reason that the framers of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 intended. that the Sick Industrial Companies ESpecial .Prpvisions) Act, 1985 be covered by the non obstante clause , contained in Section 35, and not by the exception thereto carved ourby

Section 37. Further, whereas the Recovery of Debts Due to Banks and Finam; ial Institutions Act, 1993 is expressly mentioned in Section 3 7, the Sick Industrial Companies (Special Provisions) Act, 1985 is, not, making the above position further clear. And this is in stark contrast, as has been stated above, to Section 34(2) pf the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, which expressly included the Sick Industrial Companies (Special Provisions) Act, 1985. The new legislative scheme qua recovery of debts contained in the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 has therefore to be given precedence over the Sick Industrial Companies (Special Provisions) Act, 1985, unlike the old scheme for recovery of debts contained in tfte Recovery of Debts Due to Banks and Financial Institutions Act, 1993.

35. Another interesting pointer to the same conclusion is the fact that Section 35 of the Securitisation and Reconstruction.of Financial Assets and Enforcement of Security Interest Act, 2002 is not made subjecHo Section 37 of the said Act. This statutory scheme is at complete variance with the statutory scheme contained in Section 34 of the Recovery of Debts Due to Banks and Finarn; ial Institutions Act, 1993 in which sub-section (l)ofSction 34 containing the non obstante clause is expressly made subjectto sub-section (2) (containing the Sick Industrial Companies (Special Provisions) Act, 1985) by the expression "save as provided under sub-section (2)".

36. This. is what then brings us to the d<;>ctrine of harmonious construction, whieli is one of the parambuiitdoctrines that is applied in Interpreting all statutes. Since neither Section 3-5 nor Section 37 of the Securitisation and Reconstruction of Financial As5ets' nd Enforcement of Security Interest Act, 2002 is subject tci the other, w~ think it .is necessary to interpret the expression "or any other law for the time being in force" in Section 3 7. If a literal meaniH§ is given to the said expression, Section 35 will become completely otiose as all other laws will then be in addition to and not in derogation of the Securitisation and Reconstru.ction of Financial Assets and Enforcement of:Security

c . ,

Interest Act, 2002. Obviously this could not have been the Parliamentary

intendment, after prov/ding in Section 35 that the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 will prevail over all other laws that are inconsistent therewith. A middle ground has therefore necessarily to be taken.

According to us, the two apparently conflicting Sections can best be harmonized by giving meaning to both. This can only be done by limiting the scope of the expression "or any other law for the time being in force" contained in Section 3 7. This expression will therefore have to be held to mean other laws having relation to the securities market only, as the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 is the only other pecial law, apart from the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, dealing with recovery of debts due to banks and financial institutions. On this interpretation also, the Sick Industrial Companies (Special Provisions) Act, 1985 will not be included for the obvious reason that its primary objective is to rehabilitate sick industrial companies and not to deal with the securities market.

37. An interesting pointer to the direction Parliament has taken after enactment of the Securitisation and Re.construction of Financial Assets and Enforcement of Security Interest Act, 2002 is also of some relevance in this context. The Eradi Committee Report relating to insolvency and winding up of companies dated 31. 7 .2000, observed that out of 3068 cases referred to the BIFR from 1987 to 2000 all but I 062 cases have been disposed of. Out of the cases disposed of, 264 cases wete revived, 3 7 5 cases were under negotiation for revival pr9cess, 7 41 cases were recommended for winding up, and 626 cases were dismissed as not maintainable. These facts and figures speak for themselves and place a big question mark on the utility of the Sick Industrial Companies (Special Provisions) Act, 1985. The Committee further pointed out that effectiveness of the Sick Industrial Companies (Special Provisions) Act, 1985 as .has been pointed out earlier, has been severely undermined.by reason of the enornwus delays involved in the disposal of cases' by the BIFR: (See paragraphs 5.8, 5.9 and 5.15 of the Report). Consequently, the Committee recommended that the Sick Industrial Companies (Special Provisions) Act, 1985 be repealed and the provisions thereunder for revival a1id rehabilitation should be telescoped into the structure of the Companies Act, 1956 itself.

MIS MADRAS PETROCHEM LTD.& ANR. v. BIFR & ORS. 465

[R. F. NARIMAN, J.]

38. Pursuant to the Eradi Committee report, the Companies Act· A was amended in 2002 by providing for the constitution of a National Company Law Tribunal as a substitute for the Company Law Board, the High Court, the BIFR and the AAlFR. The Eradi Committee Report was further given effect to by inserting Sections 424A to 424H into the Companies Act, I 956 which, with a few changes, mirrored the provisions of Sections I 5 to 2 I of the Sick Industrial Companies (Special Provisions) Act, 1985. Interestingly, the Companies Amendment Act of2002 omitted a provision similar to Section 22(1) of the Sick Industrial Companies (Special Provisions) Act, 1985. Consequently, creditors were given liberty to file suits or initiate other proceedings for recovery of dues despite pendency of proceedings for the revival or rehabilitation of sick companies before the National Company Law Tribunal.

39. This Amendment Act came under challenge, which challenge culminated in the Constitution Bench decision in Union oflndia v. R, Gandhi, President, Madras Bar Association, (20 I 0) 11 SCC I 0 by which the amendments were upheld, with certain changes recommended by the Constitution Bench of this Court.

40. Close on the heels of the amendment made to the Companies Act came The Sick Industrial Companies (Special Provisions) Repeal Act, 2003. This particular Act was meant to repeal the Sick Industrial Companies (Special Provisions) Act, 1985 consequent to some of its provisions being telescoped into the Companies Act ... Thus, the Companies Amendment 1'ct of 2002 and the SICA Repeal Act formed part of one legislative scheme, and neither has yet been brought into force. In' fact, even the Companies Act, 2013, which repeals the Companies Act, 1956, contains Chapter 19 consisting of Sections 253 to 269 dealing with revival and rehabilitation of sick companies along the lines of Sections 424A to 424H of the amended Companies Act, 1956.

Conspicuous by its absence is a provision akin to Section 22(1) of the Sick Industrial Companies (Special Provisions) Act, 1985 in the 2013 Act. However, this Chapter is also yet to be brought into force. These statutory pr.ovisions, though not yet brought into force, are also an important pointer to the fact that Section 22(1) of the Sick Industrial Companies (Special Provisions) Act, 1985 has been statutorily sought to be excluded, Parliament veering around from wanting to protect sick industrial companies and rehabilitate then1 to giving credence to the public . interest contained iri the recovery of public monies owing to banks and

__ E

financial institutions. These p10 vis ions also show th.at the aforesaid construction of the provisions of the Securitisation and Reconstruction ofFinan1.; ial Assets and Enforcement of Security Interest Act; 2002 visa-vis the Sick Industrial Companies (Special Provisions) Act, 1985,'ieans . in favour of creditors being able to realize their debts outside the court process over sick industrial companies being revived or rehabilitated. In fact, another interesting document is the Report on Trend and Progress of Banking in India 20 l 1-2012 for the year ended 30.6.2012 submitted by the Reserve Bank of India to the Central Government in terms of Section ~6(2) ofthe Banking Regulation Act, 1949. In table IV.14 the report provides statistics-regarding trends in Non-performin'gAssets bankwise, group-wise. As per the said table, the opening balance of Nonperforming Assets in public sector banks for the year 2011-2012 was Rs.746-bii"lion but the closing balance for201 I-2012 was Rs.1,172 billin only. The total amount recovered through. the Securitisation and Reconstruction ofFinancial Assets and Enforcement of Security Interest Act, 2002 during 2011-2012 registered a decline compared to the previous year, but, even then, the amounts recovered under the said Act constituted

70 pc; rcent ofthetotal amount recovered. The amounts recovered under the Recovery Of Debts Due To Banks And Financial Institutions Act, 1993 constituted only 28 per cent. All this ould go to show that the amounts that public sector banks and financiafinstitutions have to recover are in staggering figures and at long last at least one statutory measure has provd to be of some efficacy. This Court would be loathe to give such an interpretation as would thwart the recovery process under the Securitisation'lind Reconstruction of Financial A.ssets and Enforcement of Security Interest Act, 2002 which Act alone seems to have worked to some extent at least.

.41. It will thus be seen that notwithstanding the 11011 obstante clauses in Section 22( I) and ( 4 ), read with Section 32, Seetion 22 of the

Sick Industrial Companies (Special Provisions) Act, 1985 will have to give way to t4e measures taken under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest G Act, 2002 more particularly reforred to in Section 13 of the said Act, and that this being the case, the sale notices issued both in 2003 and 2013 could continue without in any manner being thwarted by Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985.

42. It remains to consider one argument ofShri C.N. Sreekumar.

MIS MADRAS PETROCHEM LTD.& ANR. v. BIFR & ORS.

[R. F. NARJMAN, J.]

Learned counsel argued that Section 37 of the Securitisation and Reconstruction ofFinancial.Assets and Enforcement of Security Interest Act, 2002 refers to the Recovery of Debts Due t0. Banks and Financial Institutions Act, 1993 which in tum contains Section 34(2) which makes the Sick Industrial Companies (Special Provisions) Act; 1985"prevail over the Recqvery of Debts Due to Banks and Financial Institutions Act, 1993. It was therefore argued that since Section 37 refers to the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and since Section 34(2) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 refers to the Sick Indstrial Companies (Special Provisions) Act, l 985; Section 3 7 should also be construed so as to include a reference to the Sick Industrial Companies (Special Provisions) Act, 1985. Quite apart from driving a coach-and-four through . the object sought to be achieved by the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, this" argument does not commend itself to us for the obvious reason that Section 34(2) refers to the Sick Industrial Companies (Special Provisions) Act, 1985 only for the purpose of the Recovery Of Debts Due To Banks And Financial Institutions Act, 1993 and for no other purpose. This is qujte apart from the fact that; as has been noted hereinabove, the nonreference to the Sick Industrial Companies (Special Provisios) Act, 1985 in Sect-ion 3 7 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 was deliberate, as has been held by us hereinabove.

43. Shrj Sundaram is also correct when he refers to the judgment of this Court inShree Chamuridi Mopeds v. Church of South India Trust Association, (1992) 3 SCC I. In the said judgment, this Court'\ has held:

"In the instant case, the proceedings before the Board under Sections 15 and 16 of the Act had been terminated by order of the Board dated April 26, 1990 whereby the Board, upon consideration of the facts anq material before it, found.that the appellant-company had become economically and commer.ciaHy ·· non-viable due to its huge accumulated losses and , liabilities and should be wound up. The appeal filed by the appeltant-company under Sect.ion 25 of the Act against said order of the Board was

dismis~.ffy the Appellate Authority by order dated January 7,

1991. As a result of these orders, no proceedings under the Act

was pending either before the Board or before the Appellate Authority on February 21, 1991 when the Delhi High Court passed the interim order staying the operation of the Appellate Authority oated January 7, 1991. The said stay order of the High Court cannot have tlie effect of reviving the proceedings which had been disposed of by the Appellate Authority by its order dated January 7, 1991. While considering the effect ofan interim order staying the operation of the order under-challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the -- restoration of the position as it stood on the date ofthe passing of the order which has been quashed. The stay of operation of an order does not, however,)ead to such a result. It on.ly means that the order which has been stayed would not be operative from the date of the passing_ of the stay order and it does not mean that the said order has been wiped out from existence.

This means that if an order passed by the Appellate Authority is quashed and the matter is remanded, the result would be that the appeal which had been disposed of by the said order of the Appellate Authority would be restored and it can be said to be pending before the Appellate Authority after the quashing of the order of the Appellate Authority. The same-cannot be said with regard to an order staying the operation 'of the order-of_ the Appellate Authority because in spite of the said order, the order of the Appellate Authority continues to exist in law and so long as it exists, it cannot be said that the appeal which has been disposed of by the said order hjlS not been disposed of and is still pending. We are, therefore, of.the opinion that the passing of the interim order dated February 21, 1991 by the Delhi High Court staying the operation of the order of the App_ellate Authority dated January 7, 1991 does not have the effect of'l'eviving the appeal which had been dismissed by the Appellate authority by its order dated January 7, 1991 and it cannot be said that after February 21, 1991, the said appeal stood revived and was pending before the Appellate Authority. In that view of the matt_er, it cannot be said that any proceedings under the Act were pending before the Board or the Appellate Authority on the date of the passing . of the order dated August 14, 1991 by the learned Single Judge of the Karnataka High Comi for winding up of the company or

MIS MADRAS PETROCHEM LTD.& ANR. v. BIFR & ORS. 469

[R. F. NARIMAN, J.]

on November 6, 1991 when the Division Bench passed the order dismissing O.S.A.No. 16of1991 filed by the appellant company against the order of the learned Single Judge dated August 14,

1991. Section 22(1) of the Act could not, therefore, be invoked . and there was no impediment in the High Court dealing with the winding up petition filed by the.respondents ..... " [at para I OJ

, ·-

44. A reading of the. said judgment also shows that the order of stay of the BIFR's opinion to wind up the company and the dismissal of

the appeal therefrom by the AAIFR would not in any.ml!!1ner revive the reference under Section 15 of the Appellant No. I Company. For this reason also, it. is clear that after the orders of the BIFR and AAIFR . C have been upheld by dismissal of the writ petition filed before the Delhi High Court by the impugned judgment, there can be said to be no revival of reference proceedings before the BIFR.

45. However, Shri Sreekumar referred to three judgments in support of the proposition that interim orders preserve the status quo and that, therefore, the interim order of stay has to be obeyed during the pendency of the Writ Petition. For this purpose, he cited Kihoto Hollohan

v. Zachillhu & Ors., (1992) Supp, (2) SCC 651, Ravi S. Naik v. Union oflndia & Ors., (1994) Supp. (2) SCC 641 and BPLLtd. & Ors. v.

R. Sudhakar & Or~,, (2004) 7 SCC 219.

Ech of these judgments was delivered in different contexts. The first judgment of Kihoto Hollohan was delivered in the context of landslide changes that would have taken place had a stay order not been passed in the context of the

I Q1h Schedule to the Constitution oflndia, which was enacted to remedy tr1e evil of defection: The second judgment, name\)', Ravi S. Naik was also delivered in the same context and the third judgment was delivered in the context ofSection 33(2)(b) of the Industrial Disputes Act, 1947.

None of these judgments has any direct bearing on the facts before us, which can be said to be covered directly by the judgment in Shree Chamundi +"opeds Ltd. (supra) ..

46. Question No.2 arises on the facts of.this case because of a conflict between the High Courts on the interpretation of Section 15( I) proviso 3. A large number of High Courts have, in judgments differing in detail only, taken the broad view that the expression "where a reference is pending" under Section 15( I) proviso 3 would include all proceedings before .the BIFR right till the stage of.the successful culmination of a scheme for reconstruction or the recommendation for winding up of the

A sick industrial company.

These High Courts are Madras, Delhi, Bombay, Kerala, Punjab, Gujarat and Calcutta.

All these judgments are referred to in an exhaustive full bench decision of the Madras High Cburt in Mis. Salem Textiles Limit_ed v. The Authorized 'Officer and Ors., reported in AIR 2013 Madras 229. The only dissenting B voice is that of the Orissa High Court in a judgment reported in Nol>le Aqua Pvt. Ltd. v. State Bank of India,· AIR 2008 Orissa 103, which has held that the expression "reference" would only refer to the initial stage of filing a reference before the ~IFR and not to subsequenr stages thereof, namely inquiry, preparation and sanction of schemes. It has to be determined as.to which of these two sets of judgments is_ a correct '-

, C exposition of the law.

47. It is clear that a purely literal interpretation of the expression "where a reference is pending" can yield the result that the OriS-sa High Court reached. In fact, Chapter III of the Sick Industrial Companies (Special Provisions) Act, 1985 specifically refers, in the Chapter heading, D to references,_ i!1quiries and schemes. While Section 15 of the Sick Industrial Companies (Special Provisions) Act, 1985 deals with references, Section 16 deals;, with inquiries into the working of Sick Industrial Companies. Section 18 then deals w\th preparation and sanction of schemes.

48. What has to be examined is whether this purely literal rendering ofthe expression "where a reference is pending" is corrct or not. First and foremost, it is important to note that the third proviso to Section 15(1) _uses the words "is pending". A reference has been held to be pending the moment it is_ received by the Board. In Real Value Appliances Ltd. v. Canara Barik & Ors., (1998) 5 SCC 554, this Court had to decide whether the mere registration of a reference by the BIFR would result in the automatic cessation of all proceedings which

ar~ pending in civil courts and the company court against its assets. It was argued that in order that Section 22 of the Act can.come _into operation, the BIFR must, subsequent to the registration of the reference G under Section 15, apply its mind and consider whether it is necessary under Section 16 to make an inquiry. Unless an inquiry is pending, the provisions of Section 22 of the Act do not get attracted. It was held that once the reference is registered after a preliminary scrutiny, it is mandatory for the BIFR to conduct an inquiry. This being so, it is in furtherance of the legislative intention to S\:e that no proceedings against the assets are H taken before the BIFR decides, after the inquiry, to continue with the

M/S MJ\DRAS PETROCHEM LTD.& ANR. v. BIFR & ORS. 471 [R. F. NARlMAN, J.]

'reference. It was thus held, having particular regard to Section 16(3) A explanation, that an inquiry shall be deemed to have commenced upon the receipt by the Board of any reference or information or upon __ its knowledge reduced to writing by the Board. This being the case, this Court held t_hat once the reference is registered and once it is mandatory to simultaneously call for information/documents from the informant, B then an inquiry under Section 16 must be deemed to have commenced.

In that view of the matter, Section 22 would immediately come into play.

It is clear, therefore, that if a literal mean-ing were to be applied to the . . _expression "where a reference is pending", the third proviso to Section

15(1) of the Sick Industrial Companies (Special Provisions) Act, 1985 would be rendered otiose and the.purpose for which it was inserted C would completely fail. On a literal reading of the provision, such reference shall abate on steps being taken by the secured creditors to recover their secured debts under Section 13( 4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of security Interest Act, 2002, the moment a reference is registered. And this Court has D held that the moment the reference is registered, an inquiry as contempfated by Section 16 shall be deemed to commence. If that is so, then a reference can never be said to be pending after an inquiry commences, if learned counsel for the Appellants is correct: This can never be the case. It is clear, therefore, that the expression."where a_ - reference is pending" would necessarily include the inquiry stage before E the Board under Section 16 of the Act. If th is be the case,...then the reference can be aid to be pending not only when an inquiry is instituted, but also after preparation and sanction of a scheme right till the stage tpe scheme has worked out successfully or till the BIFR gives its opinion to wind up the company:

49. The expression "reference" used_ in Section 15(1) proviso 3 is F

used in contra distinction to the expression "proceedings" in Sction 22. "Proceedings" under Section 22 are actions taken against the sick company, whereas "references" are actions initiated by a sick company - it is perhap? forthis !eason that the tird proviso to Section

15(1) uses the expression "reference" instead of the expression G

"proceedings~'.

50. Another impo11ant aspect as to the construction of the third proviso to Section 15(1) i_s the meaning oftheexpression "such reference shall abate". One of the meanings of the expression "abate" is "to put an end to; to curtail; to come to naught". (See Ramanatha Aiyar's Law H

Lexicon). A reference can be said to abate in one or several ways. One obvious way that a reference abates is where the Board, after inquiry, rejects the reference for the reason that the Board is satisfied that the Company is not a sick industrial company as defined under the Act.

Another way in which a reference can abate is where a scheme is implemented successfully, and the sick industrial company is taken out of the woods successfully. A third manner in which a reference can abate is when a scheme or schemes have failed in respect of the sick industrial company, and in the opinion of the BIFR, the said Company ought to be wound up. A fourth instance of abatement is provided by the third proviso to Section 15(1) of the Sick Industrial Companies (Special Provisions) Act, 1985. And that is that a reference which is pending in the sense understood hereinabove shall abate ifthe secured creditors of not less than 3/4th in value of the amount outstanding against the financial assistance disbursed to the borrower, have taken measures to recover secured debts under Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2902. It is clear that the third proviso to Section 15(1) seeks to strike a balance between getting a sick industrial company out of the woods and secured creditors being able to recover the debt owed to them by such company. The legislature has thought it fit to annul all proceedings before the BIFR only when at least 3/4•h of the amount outstanding against financial assistance disbursed to the borrower of such secured creditors have taken the measures listed in Section 13( 4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The balance is therefore struck by the figure of"not less than 3f4th". The legislature has inserted this provision so that, if3/4•h or more of the secured creditors get together F to take measures under Section 13(4) of the Securitisat:ion arid Reconstruction ofFinancial Assets and Enforcement of Security Interest Act, 2002, they will not be thwarted by the provisions of Section 22 of Sick Industrial Companies (Special Provisions)Act, 1985, and it will not be necessary for them to obtain BIFR permission before taking any G such measures. This construction of the third proviso to Section 15( 1) is in keeping with the march of events post 2002, when the Securitisation and Reconstruction of Financial Assets and Enforcementof Security Interest Act, 2002 came to be enacted p_ursuant to various cominittee -·- reports, and for the reasons outlined hereinabove.

MIS MADRAS PETROCHEM LTD.& ANR. v. BIFR & ORS.

[R. F. NARIMAN, J.]

51. A recent judgment of this Court in Pegasus Assets Reconstruction P. Ltd. v. Mis. Haryana Concast Limited & Anr., (Civil Appeal No. 3646of2011), has held, agreeing with a judgment of the Delhi High Court, and disapproving a judgment of the Punjab and Haryana High Court: that a Company Court exercisingjurisdiction under the Companies Act, has no control in respect of sale of a secured asset by a secured creditor in exercise of powers available to such creditor . under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. Some of the observations made by this Court are interesting in that this Court has held that the Securitisation Act is a complete code in itself, and that earlier judgments rendered in the context of the State Financial Corporation Act, 1951 or the Recovery Of Debts Due To Banks And Financial Institutions Act, 1993 cannot be held applicable to the Securitisation Act. Further, the very incorporafrorr of certain ..provisions of the Companies Act in the Securitisation Act themselves harmonise the latter Act with the Companies Act in respect of workers debts under Section 529A of the Companies Act. In a significant paragraph, this Court has held:

"The aforesaid view commends itself to us also because of clear intention of the Parliament expressed in Section 13 of the . SARFAESI Act that a secured creditor has the right to enforce its security interest without the intervention of the court or tribunal. At the same time, this Act takes care that in case of grievance, the borrower, which in the case ofa company under liquidation would mean the liquidator, will have the right of seeking redressal under Sections 17 and 18 of the SARFAESIAct." (At para25)

52. The matter can be viewed from a slightly different angle also.

There are many situations in which Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 will not apply. One such.., situation is a situation where an eviction petition is filed under a State R; nt Act for evicti1; m on the ground ofnon-payment ofrent. Such eviction petitions have been held not to be suits for recovery of money.

Consequently, Section 22 of the Sick' Industrial Companies (Special Provisions) Act, 1985 has been held not to apply - See Gujarat Steel Tube Co. Ltd. v. Virchandbhai B. Shah,(1999) 8 SCC P.11 (paragraphs 9 and JO).

53. Similarly, in KailashNathAgarwal v. Pradeshiya Industrial & Investment Corpn. of U.P. Ltd., (2003) 4 SCC 305, the U.P. Act . under which recovery proceed_ings initiate~ against guarantors at a postdecree stage were held to be outsidethe purview of Section 22 of the

Sick Industrial Companies "(Special Provisions) Act, 1985. (see paragraph 35).

_54. The resultant position may be stated thus:

"" 1.

Section 22 of the Sic"k Industrial Companies (Special Provisions) Act, 1985 will continue to apply in the case of unsecured creditors seeking to recover their debts from a sick industrial company. This is for the reason that the Sick IndustriaLCompanies (Special Provisions) Act, 1985 overrides the provisions of the Recovery Of Debts Due To Banks And Financial Institutions Act, 1993.

Where a secured creditor of a sick industrial company seeks to recover its debt in the manner provided by Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, such secured creditor may realise such secured debt tinder Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, notwithstanding the provisions of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985.

In a situation where there are more than one secured creditor ef a sick industrial company or it has been jointly financed by secured creditors, and at least '60 per cent of F such secured creditors In value of the amouritoutstanding as on a record date do not agree upon exercise of the right to realise. their security under the. Securitisation and Recohstruction of Financial Assets and Enforcement of Security Interest Act, 2002, Section ~2 of the Sick Industri~I G Companies (Special Provisions) Act, 1985 will continue fo

h_ave full play. ·

Where, under Section 13(9) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, in the case of a sick industrial company having more than one secured creditor or being

MIS MADRAS PETROCHEM LTD.& ANR. v. BIFR & ORS.

47S

[R. F. NARIMAN, J.]

' j9intly financed by secured creditors representing 60 per A cent or more in value of the amount outstanding as on a record date wish to exercise their rights to enforce their security under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, ' 2002, Section 22 of the Sick Industrial Companies (Special 8 , Provisions) Act, l 98S, being inconsistent with the exercise ·

of such rights, will have no play.

S. . Where secured creditors representing not less than 7S per cent in value of the amount outstanding against financial assistance decide to enforce their security un.der the Securitisation and Reconstruction ofFincial Assets and C Enforcement of Srity InteresfAct, 2002, any reference. pending under the Sick Industrial Companies (Special P!ovisions) Act, 198S cannot be proceeded with further - the proceedings under the Sick Industrial Companies (Special Provisions) Act, l 98S will abate.

SS. In conclusioh, it is held tliatthe interim order dated 17.1.2004 by the Delhi High Court would not have the effect of reviving the

referene so.as to thwart taking of any stepsby tlie respondent creditors in this case under Section 13 of the Securitisation and ReconstnictiOn of Financial Assets and Enforcement of Security Interest Act, 2002. This is because the Securitisation and Reconstruction of Financial Assets E and Enfprcemerit of Security Interest Act, 2002 prevails over the Sick Industrial Companies (Special ProvisioiiS).Act, l 98S to the extent of inconsistency therewlfh-:ffoction l S( 1) proviso 3 covers all references pending before the BIFR, no matter whether such reference is at the inquiry stage, scheme stage, or winding up stage. The Oissa High Court . F is not correct in its conclusion on the interpretation of Section l S(l) proviso 3 of the Sick Industrial Companies (Special Provisions) Act, ? . l.98S. This being so, it is cleat that in any case the present reference under Section lS(l) oftheAppellantNo. I company has abated inasmuch as more than 3/4'h of the secured creditors involved have taken steps under Section 13(4) of the Securitisation and Reconstruction ofFinancial G Assets and Enforcement of Security Interet Act, 2002. The appeals are accordingly dismissed. ·

Bibhuti Bhushan Bose Appeals dismissed.

H .

' '