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Judgment
By this writ petition under Article 226 of the Constitution of India, the petitioner is praying for the following reliefs:-
VII/ Relief Sought:-
This Hon'ble Court may be pleased:
A) To issue a writ of certiorari and/or any other writ, direction or order, requiring the respondents and in particular Respondent No.6, the Commercial
Tax Officer Circle No.-9, Indore to certify to this Hon'ble Court to all records of this case in which impugned garnishee order dated 28.3.2017
(Annexure P/1) has been issued and after examining legality and/or propriety thereof quash the same.
B) To issue writ of prohibition and/or any other writ, direction or or4der for prohibiting and/or restraining the respondents and in particular Respondent
No.6 from treating the petitioner as a defaulter in respect of the deferred amount of taxes till disbursal of Industrial Investment Promotion Assistance
by the State Government as per modified scheme sanctioned by BIFR.
C) To issue a writ of mandamus and/or any other writ, direction or order for directing the Government of MP to immediately grant Industrial
Investment Promotion Assistance to the petitioner which has already been sanctioned, without insisting upon substitution of name of petitioner in place
of previous entity.
D) To issue a writ of mandamus and/or any other writ, direction or order for directing the Union of India through respondent No.1 and/or Respondent
No.2 to constitute appropriate authority for implementation & enforcement of the scheme dated 15.01.2014 framed by BIFR.
E) To issue an appropriate writ, direction or order to the respondents directing them to adjust the Industrial Investment Promotion Assistance against
the deferred amount of taxes and also for directing the authorities not to take coercive action against the petitioner for balance amount during the
period of implementation of the scheme.
F) To issue any other appropriate writ, direction or order as this Hon'ble Court may deem fit in the facts and circumstances of this case.
G) To award the cost of this petition in favour of the petitioner.
Shri Deepak Rawal, learned A.S.G. for Union of India has raised an objection regarding maintainability of the writ petition and submitted that the
Ministry of Corporate Affairs has issued the Insolvency and Bankruptcy Code (Removal of Difficulties) Order, 2017 vide notification dated 24.5.2017
which clearly provides that, “any scheme sanctioned under sub-section (4) or any scheme under implementation under sub-section (12) of Section
18 of SICA, 1985 shall be deemed to be an approved resolution plan under sub-section (1) of Section 31 of the Insolvency and Bankruptcy Code, 2016
and the same shall be dealt with in, accordance with the provisions of Part-II of the said Code.†Therefore, National Company Law Tribunal, which
is the Adjudicating Authority under the Code has powers of review or monitoring of deemed approved resolution plans and prayed for dismissal of the
writ petition.
In the present petition, the petitioner is claiming the relief to enforce modified scheme of revival sanctioned by BIFR vide its order dated 15.1.2014.
As the Ministry of Corporate Affairs has already issued Insolvency and Bankruptcy Code (Removal of Difficulties) Order, 2017, the petitioner has the
mechanism to approach NCLT, Adjudicating Authority under Insolvency and Bankruptcy Code, 2016 in regard to seeking directions for
implementation of its scheme dated 15.1.2014.
Relevant part of the Notification issued by the State Government on 24.5.2017, reads as under:-
“Whereas, the Insolvency and Bankruptcy Code, 2016 (31 of 2016) (hereinafter referred to as the said Code) received the assent of the President
on 28th May, 2016 and was published in the official Gazette on the same date;
And, whereas, section 252 of the said Code amended the Sick Industrial Companies (Special Provisions) Repeal Act, 2003 (1 of 2004) in the manner
specified in the Eighth Schedule to the said Code;
And, whereas, the un-amended second proviso to clause (b) of section 4 of the Sick Industrial Companies (Special Provisions) Repeal Act, 2003
provides that any scheme sanctioned under sub-section (4) or any scheme under implementation under subsection (12) of section 18 of the repealed
enactment i.e., the Sick Industrial Companies (Special Provisions) Act, 1985 (1 of 1986) shall be deemed to be a scheme under implementation under
section 424D of the Companies Act, 1956 (1 of 1956) and shall be dealt with in accordance with the provisions contained in Part VIA of the
Companies Act, 1956; And, whereas, section 424D of the Companies Act, 1956 provided for review or monitoring of schemes that are sanctioned or
are under implementation;
And, whereas the Companies Act, 1956 has been repealed and re-enacted as the Companies Act, 2013 (18 of 2013) which, inter alia, provides for
scheme of revival and rehabilitation, sanction of scheme, scheme to be binding and for the implementation of scheme under sections 261 to 264 of the
Companies Act, 2013;
And, whereas, sections 253 to 269 of the Companies Act, 2013 have been omitted by Eleventh Schedule to the Insolvency and Bankruptcy Code,
2016;
And, whereas, clause (b) of section 4 of the Sick Industrial Companies (Special Provisions) Repeal Act, 2003 has been substituted by the Eighth
Schedule to the Code, which provides that any appeal preferred to the Appellate Authority or any reference made or inquiry pending to or before the
Board or any proceeding of whatever nature pending before the Appellate Authority or the Board under the Sick Industrial Companies (Special
Provisions) Act, 1985 shall stand abated. Further, it was provided that a company in respect of which such appeal or reference or inquiry stands
abated under this clause may make a reference to the National Company Law Tribunal under the Code within one hundred and eighty days from the
date of commencement of the Code;
And, whereas, difficulties have arisen regarding review or monitoring of the schemes sanctioned under sub-section (4) or any scheme under
implementation under sub-section (12) of section 18 of the Sick Industrial Companies (Special Provisions) Act, 1985 (1 of 1986) in view of the repeal
of the Sick Industrial Companies (Special Provisions) Act, 1985, substitution of clause (b) of section 4 of the Sick Industrial Companies (Special
Provisions) Repeal Act, 2003 and omission of sections 253 to 269 of the Companies Act, 2013;
Now, therefore, in exercise of the powers conferred by the sub-section (1) of the section 242 of the Insolvency and Bankruptcy Code, 2016 (31 of
2016), the Central Government hereby makes the following Order to remove the above said difficulties, namely:â€
Short title and commencement.â€"(1) ThisOrder may be called the Insolvency and Bankruptcy Code (Removal of Difficulties) Order, 2017.
In the Insolvency and Bankruptcy Code,2016, in the Eighth Schedule, relating to amendment to the Sick Industrial Companies (Special Provisions)
Repeal Act, 2003, in section 4, in clause (b), after the second proviso, the following provisos shall be inserted, namely:â€
“Provided also that any scheme sanctioned under sub-section (4) or any scheme under implementation under sub-section (12) of section 18 of the
Sick Industrial Companies (Special Provisions) Act, 1985 shall be deemed to be an approved resolution plan under sub-section (1) of section 31 of the
Insolvency and Bankruptcy Code, 2016 and the same shall be dealt with, in accordance with the provisions of Part II of the said Code:
Provided also that in case, the statutory period within which an appeal was allowed under the Sick Industrial Companies (Special Provisions) Act,
1985 against an order of the Board had not expired as on the date of notification of this Act, an appeal against any such deemed approved resolution
plan may be preferred by any person before National Company Law Appellate Tribunal within ninety days from the date of publication of this
order.â€
As per notification dated 24.5.2017 which has been incorporated hereinabove, the present writ petition is not maintainable and the National
Company Law Tribunal is the Adjudicating Authority to decide the issue which has been raised in the writ petition.
For these reasons, writ petition has no merit and is, accordingly, dismissed.