- (1.) Having heard the respective counsel and learned senior counsel for the parties this court has come around to the view that the present Company Petition deserves to be dismissed as one by barred by limitation and for the following reasons: the Petitioner has stated in para. No.8 of the petition that the parties agreed to enter into a "Fresh Agreement" dated 18th August 1997 and under which the respondent agreed to make a payment of Rs. 36,67,328/- in the manner indicated in the novated agreement and thereafter, the Respondent would stand absolved of the liability to pay Rs. 60,17,495/- to the opposing side. Furthermore, in the event the Respondent failed to make such payment the respondent's liability to make good a sum of Rs. 60,17,495/- alongwith interest @20% as liquidated damages would continue to enure vide document Annexure P-3. The Respondent Company became sick and made a reference to the Board for Industrial and Financial Reconstruction (BIFR) under Section 15(1) of the Sick Industries Companies (Special Provisions) Act, 1985 ('the Act') to try to turn it out of the red. The BIFR on 10th June 1998 decided against survival nd declared the Respondent Company Sick under Section 3(1)(o) of the Act and appointed IFCI as the operating agency under Section 17(3) of the Act for advising on measures for its rehabilitation. The Petitioner Company had earlier applied to BIFR for its leave and consent under Section 22 of the Act to permit it to either file a civil suit for recovery of its money or to bring a winding up petition against the respondent for its inability to pay its admitted debt within the period of limitation as it was expiring while the matter was pending before the BIFR. The BIFR vide its order dated 28th June 2005 (P-4), while observing that the net worth of the Company has become positive in terms of its current balance sheets since its accumulated losses were demonstrably wiped out and as such declared the Company as no longer sick within the meaning of Section 3 (1)(o) of the Act and accordingly discharged the Respondent Company from the purview of the Act and set it free to carry on its business without the yoke of the Act.
(2.) In para. 10 (a) of the Company Petition, the Petitioner has asserted that on coming to know of the reference of the Respondent Company pending with BIFR, it also registered its claim against the Respondent with the Board of Industrial & Financial Reconstruction alongwith the other creditors, secured and unsecured. Thus, the Petitioner was in the know of the proceedings of the BIFR upto the stage of its termination vide annexure P-4 of which this court harbours no doubt on the strength of this admission of fact. In para. 5 of the order (P-4), it was directed that "a copy of this order be sent to all concerned." Petitioner has attached with the replication (P-9), which is the order passed by the BIFR on 27th July 2000 wherein the request of the Petitioner for initiating recovery proceedings against the Respondent Company was rejected. The Petitioner further relies on a communication dated 12th August 2000 sent by the Petitioner to BIFR with a copy marked to IFCI, wherein it requested that their claim be also included in the scheme for rehabilitation. It is submitted that these documents were never attached with the main petition. Vide order passed by BIFR on 28th June 2005 (P- 4), it was held that the Respondent does not remain any longer a Sick Industrial Company in terms of Section 3(1)(o) of the Act. The petitioner has therefore, intentionally and wrongly stated that: "No information of the said order, much less the order itself, was sent to the Petitioner Company as is the mandatory requirement of law "
(3.) In para. 12 of the Company Petition, the Petitioner has stated: "However, in September, 2009, the Petitioner through third party resources (without giving any details of the same) came to know that the proceedings from the BIFR had terminated and the said order had been passed therein." The Petitioner, however, in para. 10(c) of the Company Petition has taken a volte-face by pleading: "In May, 2010, the Petitioner received the information as to the said order (Annexure P-4) through third party resources. Immediately thereafter, the petitioner through its counsel, issued a legal notice dated 11.05.2010..." Thus, it is abundantly clear that the facts as stated both in para. 12 and para. 10(c) of the Company Petition as far from the truth.;