R.Pal J. - (1.) I fully concur in the judgment of my learned brother who has narrated the facts in some detail. However having regard to the issues involved in this appeal it is necessary to highlight and deal with certain aspects of the matter.
(2.) The first issue pertains to the construction of section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 (hereafter referred to as the Act). It was contended by the appellant that the language of section 22 must be given a wide interpretation in order to effect the object of the Act. In my opinion while one of the objects of the Act may be to help sick industrial companies to survive by affording remedial measures, the other object is to prevent companies from becoming sick. The remedial measures afforded to an already sick company cannot be enforced in a manner which could tend to drive another healthy company to sickness. Section 22(1) thus provides for protection of a sick company so that its assets and its finances are maintained in status quo in order to give the company a chance to revive. To that extent the creditors rights to the assets of the company whether movable or immovable are suspended. But the section does not envisage the company being revived with the assets and the properties of third parties. According to the appellant if the machines are returned to the respondent there could be no scheme for rehabilitation. Apart from the fact that the Act does not provide for rehabilitation with the properties of third parties in the company's rehabilitation programme, the appellant being sick itself, cannot survive parasitically on the property of others against their will. It does not appear that the respondent was even asked to participate in the revival programme by the Board of Industrial and Financial Reconstruction. If the appellant is to survive it is to survive on the basis of its own assets with the protection afforded thereto by the provisions of the Act.
(3.) The question of balance of convenience would arise if the appellant had even a prima facie right to the machines without any payment for user. There is no such right. Therefore there is no question of mere balance of convenience determining the issue. Irrespective of the inconvenience that may be caused to the appellant, in the absence of any right to the machines and equipment, the appellant cannot be permitted to remain in possession of the same nor utilise it as the part of any revival scheme. On the other hand, because of section 22 of the Act, as held by my learned Brother, the respondent would not, for the time being, be able to claim any money from the appellant either on account of rentals or for any loss or damage which it may suffer by reason of such non-payment of the rental by the appellant or by reason of deprivation of the user of the equipment. To deprive the respondent of its machinery would be even to effect a future business and source of profit of the respondent. Therefore even the balance of convenience is in favour of the machineries being returned to the respondent.;