AJAY TEWARI,J. - (1.) THIS petition has been filed by the Punjab State Industrial Development Corporation ( for short PSIDC) challenging the order dated 24.9.96, whereby the Appellate Authority for Industrial and Financial Reconstruction (for short AAIFR), has allowed the appeal of respondent No. 5 against an order dated 13.3.96 passed by the Board of Industrial and Financial Reconstruction (BIFR) dated 13.3.1996 holding that the reference preferred by the respondent No. 5 was not maintainable.
(2.) THE case set up by the petitioner is that after the aforementioned order dated 13.3.96, the respondent No. 5 had filed CWP No. 8496 of 1996 for the following reliefs :- a. Quash the Advertisement of sale Annexure P-1, b. To open the locks put on the unit of Punjab Nitrates Ltd. and to restrain the respondents from interfering in the functioning of the company in any way till pendency of reference/appeal before AIFR under Section 25 of 2 SICA, c. To exempt the necessity of filing certified copies of the Annexure. d. To award the costs of the petition. In the said case a Division Bench of this Court noticed as follows :- "It is so pleaded and argued by the learned counsel representing the petitioner and it may be mentioned that it is his sole contention that after the matter was referred to BIFR, respondents herein were legally debarred from taking any action including the one contemplated by them i.e. sale of the unit which has been endeavoured to be done by issuing advertisement Annexure P-1." Ultimately this Court held as follows :- "It has been specifically pleaded that reference before the BIFR was filed on 20.10.1995 a month after the possession of the assets of the company was taken over by the Corporation. With a view to support this assertion made in the written statement Mr. Sethi, learned Counsel representing respondent No. 1 has taken us through order Annexure R-2 passed by BIFR, paragraph 10 whereof reads as under :- "Reacting to the submissions of Shri Jagdish Gupta, company's representative pointed out certain factual inaccuracies therein. He submitted that they had filed a reference with BIFR on 27.9.95 and in the month of October, 1995 certain additional information was submitted." No replication has been filed to controvert the plea of the Financial Corporation with regard to date of filing reference with BIFR. That apart, it has been the company's case before the BIFR that reference was filed on 27.9.95. It was not disputed during the course of arguments that by applying Section 29 of the Financial Corporation Act, possession of the unit was taken on 20.9.1995." xxx xx xx xx xxx xxx xx xx xx xxx A bar created under Section 21(1) of the 1985 Act cannot be invoked whatever be the stage and we are of the clear view that if action is taken prior to making of a reference, Section 22 (1) of the Act cannot be pressed into service. We are also in agreement with the contention raised by the learned counsel representing the respondents that the petitioner who was removed by the company to be the Managing Director could not maintain writ in his individual capacity." Consequently this Court dismissed the writ petition by order dated 2.8.96.
(3.) BEFORE the filing of the said writ petition No. 8946 of 1996 the respondent No. 5 had also preferred an appeal against the aforesaid order dated 13.3.1996. It was this appeal which has been allowed by the impugned order wherein it has been held on fact that the reference was sought by the respondent No. 5 before the action under Section 29 of the State Financial Corporations Act, 1951 could be initiated by the petitioner and thus the finding of the BIFR that the action under Section 29 was prior to the seeking of reference was incorrect.;