Holding

The SARFAESI Act overrides the SICA Act to the extent of inconsistency, permitting secured creditors to enforce security under SARFAESI notwithstanding SICA Section 22, and a reference under SICA is deemed pending through all BIFR stages but abates when 75% of secured creditors act under SARFAESI.

Summary

Madras Petrochem Ltd. and another filed appeals challenging a Delhi High Court order that stayed the winding‑up of the company before the BIFR. The core dispute was whether the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) overrides the Sick Industrial Companies (Special Provisions) Act, 1985 (SICA) and, if so, whether secured creditors could enforce their security under SARFAESI despite SICA's Section 22. The Court examined the hierarchy of statutes with non‑obstante clauses and held that SARFAESI prevails over SICA to the extent of inconsistency, allowing secured creditors to realise their dues under Section 13(4) of SARFAESI. It further interpreted SICA’s Section 15(1) proviso 3 to mean that a reference to the BIFR remains pending through inquiry, scheme and winding‑up stages, but abates when three‑quarters of secured creditors act under SARFAESI. The interim stay order did not revive the reference, and the winding‑up proceedings could continue. Consequently, the appeals were dismissed.

Issues considered

Whether the SARFAESI Act, 2002 prevails over the Sick Industrial Companies (Special Provisions) Act, 1985.
Interpretation of the phrase ‘where a reference is pending’ in SICA Section 15(1) proviso 3 – does it cover all stages before the BIFR?
Effect of the Delhi High Court’s interim stay order on the pending reference and on the winding‑up proceedings.

Legislation cited

Companies Act, 1956
Recovery of Debts Due to Banks and Financial Institutions Act, 1993s. 17, s. 18, s. 34
Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002s. 13, s. 35, s. 37, s. 41
Sick Industrial Companies (Special Provisions) Act, 1985s. 15, s. 22, s. 32
Transfer of Property Act, 1882s. 69, s. 69A

Subjects

SARFAESI ActSICAsecured creditorreference pendingBIFRnon obstante clausedebt recoveryinsolvencystatutory interpretation

Judgment

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

MIS MADRAS PETROCHEM LTD. & ANR A
v. •
BIFR& ORS.
(Civil Appeal Nos. 614-615 of2016)
JANUARY 29, 2016 B

(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) c
·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 D
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
E
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 F
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
G
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. H
' 419
420 SUPREME COURT REPORTS (2016] 11 S.C.R.

A 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
B
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
c 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
D (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
E 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
F 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
G 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
H
MIS MADRAS PETROCHEM LTD.& ANR. v. BIFR & ORS. 421

Banks And Financial Institutions Act, 1993 deals with recovery A
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
13
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 c
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
D
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 E
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
F
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 G
Due to Banks and Financial Institutions Act, 1993 in which sub-
section (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
H
422 SUPREME COURT REPORTS [2016] II S.C.R.

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
H
MIS MADRAS PETROCHEM LTD.& ANR. v. BIFR & ORS. 423

of sick companies before the National Company Law Tribunal. A
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 B
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. c
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
D
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 E
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 outside- the court process over sick industrial
companies being revived or rehabilitated. [Paras 37, 38 and 40] F
[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
G
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
H
424 SUPREME COURT REPORTS [2016] 11 S.C.R.

A 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
B 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
c 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
D 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
E 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 1·cading of the
H
M/S MADRAS PETROCHEM LTD.& ANR. v. BIFR & ORS. 425

provision, such reference shall abate on steps being taken by A
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
B
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 c
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) D
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] E
[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 F
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 G
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 ·
l
H
426 SUPREME COURT REPORTS [2016] l l S.C.R.

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
outstanding against the financial assistance disbursed to the
B
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
F
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.
G
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
H
MIS MADRAS PETROCHEM LTD.& ANR. v. BIFR & ORS. 427

Reconstruction P. Ltd. 1i Mis. Haryana Concast Limited A
& 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.
B
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
c
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, D
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
E
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 F
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
G
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
H
428 SUPREME COURT REPORTS [2016] 11 S.C.R.

A 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 Reco·nstruction of Financial
B
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]
c 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
E
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 .
F Interest Act, 2002. [Para 55] [475-D-G]
Case Law Reference
(201~) 1 sec 166 referred to Para IO
2004 (3) SCR 982 referred to Para 20
G 1993 (1) SCR 340 referred to Para25
2001 (1) SCR 932 referred to Para 26
2006 (6) Suppl. SCR 189 referred to Para 27
2006 (10) Suppl. SCR 1022 referred to Para 28
H '·
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 • 'V,
distinguished Para 45
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
H·
430 SUPREME COURT REPORTS f2016111 S.C.R.

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 no~ice.
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
aliproc~edings 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
432 SUPREME COURT REPORTS [2016] 11 S.C.R.

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 Inte~est
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
E
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
F 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
G 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
H
MIS MADRAS PETROCHEM LTD.& ANR. v. BIFR & ORS. 433
[R. F. NARIMAN, J.]

Threads Ltd., (2015) 1 SCC 166, which held that the Sick Industrial A
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
B
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 c
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 37 of the Securitisation and Reconstruction of Financial
Assets and Enforcement of Security Interest Act, 2002 should also be
D
construed so as to include a reference to the Si~k 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 E
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 F
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 G
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 would- it H-
434 SUPREME COURT REPORTS [2,016] II S.C.R.

A render the winding up order passed by Bombay High Court non est. He
also submitted that a large number ofjudgments 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 proceedinga
under the Sick Industrial Companies (Special Provisfons) Act, 1985
including the stage of operation .o·f a scheme. For this purpose; in
B
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)
c 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
D
Securitisation and Reconstruction ofFinancial Assets and Enforcement
of'Securi-ty Interest Act, 2002 would prevail over the Sick Industrial
.,Companies (Spe~ial 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: .
E 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
F
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:- ·

G 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. · ----

H
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
B
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 c
.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: D
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 E
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 pendin·g 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
436 SUPREME COURT REPORTS [2tl 16] 11 S.C.R. .

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
B
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
c 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.
D (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
E
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
F 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
G 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
H be applicable to such sick industrial company immediately before
MIS MADRAS PETROCHEM LTD.& ANR. v. BIFR & ORS. 437
[R. F. NARIMAN, J.]

the date of such order, shall remain suspended or that all or any A
ofthe 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 B
exceeding two years which may be extended by one year, at a-
time 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 c
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,- D
( 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 · E

(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
F
(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
438 SUPREME COURT REPORTS f20161 11 S.C.R.

A 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
B
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
c · 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
D 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.
E
(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
F
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.

H
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 sub- section (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. B
(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) Notwithstan~ing 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 sub- secti.on ( 4). G
(3) The notice referred to in sub-section (2) shall give details of
the amount payable by the borrowet· and the- secured assets
intended to be enforced by the se~ured creditor in the ev~nt of
non-payment of secured debts by the borrower.

H
440 SUPREME COURT REPORTS r2016] ll S.C.R.

A (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
B
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
c Tribunal under section 17 or the Court of District Judge under
section 17A.

(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
D 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; · ·

E . (b) take over the management of the business of t~e 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
F 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),
G
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

H
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. B
(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.
I
(SC) The provisions of section 9 of the Banking Regulation Act, !
1949(10of1949) sh~ll, 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,
F
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
G
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 '-
H
442 SUPREME COURT REPORTS f2016111 S.C.R.

A 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
'-B 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 offinan~ing ofa financiai'asset by more than one
c 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
D-
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):
E
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
F 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
G in accordance with the provisions of section 529A of the
Companies Act, 1956 (I of 1956) and in.ca~e 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
H
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 lil~uidator 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 c
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. D
(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 E.
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
F
(a) to {cl) of sub~section (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.
G
(13) No borrower shall, after receipt ofnotice referred to in sub-
section (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. '
H
I· 444 SUPREME COURT REPORTS [2016] 11 S.C.R.

A 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.
B
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
c ( 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
D the manner specified therein."
THE SCHEDULE
(Section 41)
Year Act Short title Amendment
No.
E
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
F 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
G 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". ·
-
H
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) A
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 ~

s:
' . 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
c
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 D
Reconstruction of Finan:ial
Assets and Enforcement of
Security Interest Act 2002 where
~ ln'S~erence is pending before lhe ·
' Boar'd for Industrial and
' . Financial Reconstruction such E.
reference shall abate if the
secured creditor$ representing
not less than three-fourth in
value of the amount outstanding
against financial assistance
;,,· disbursed to the·borrowei- of .. F
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 G
three legislations. Each of them deals wtih different aspects ofrecovery
of debts due to banks and financiai'instTt~tions. 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,
H
446 SUPREME COURT REPORTS [2016] 11 S.C.R.

A 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
B
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:
c
"THE SICK INDUSTRIAL COMPANIES (SPECIAL
PROVISIONS) ACT, 1985
STATEMENT OF OBJECTS AND REASONS
The ill effects of sickness in industrial companies such as
D 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
E 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
F ·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
G 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~
H
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-
B
(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; c
(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 and-
accumulated 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 E
. 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;
F
(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
G
(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
H

")
448 SUPREME COURT REPORTS f2016l l l S.C.R.

A 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,
B
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
c 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
D
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
E said Section, and finally, the scheme fnay work successfully, resulting in
the Company's net worth t~rning 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
F
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 ofAssociation
H
MIS MADRAS PETROCHEM LTD.& ANR. v. BIFR & ORS. 449
[R. F. NARIMAN, J.J

of the industrial company or any other instrument having effect by virtue A
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 B
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 c
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 ha~blocked asignificant
portion of their funds in unproductive assets, the value of which
deteriorates with the passage of time. The Committee on the D
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 E
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 F
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 G
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 H
450 SUPREME COURT REPORTS r2o 161 11 S.C.R.

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."
B 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
c 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 sub-
D section (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
E 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
F 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
G 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
H
MIS MADRAS PETROCHEM LTD.& ANR. v. BIFR & ORS. 451
[R. F. NARIMAN, J.]

do not have a level playing field as compared to other participants A
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
B
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 c
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
D
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 E
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
F
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
452 SUPREME COURT REPORTS (2016] ll S.C.R.

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;
c (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
D ·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
E same or take over management in the event of default, i.e.
cla:ssifi,cation of the borrower's account as non~performing 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
F 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; ~ ··
G (k) setting up or causing to. be set up a Central Registry by the
Central Government for the purpose of registration oftransactions
relating to securitisation, asset reconstruction and creation of
security interest;
(I) application of the proposed legislation initially to banks and
H
MIS MADRAS PETROCHEM LTD.& ANR. v. BIFR 8? ORS. 453
[R. F. NARIMAN, J.] .

financial institutions and.~mpowennent ofthe 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, c
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 D
Mardia Chemic~ls 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
F
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
454 SUPREME COURT REPORTS r2o 161 11 S.C.R.

A 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
B
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
c 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
D
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
E NPAs 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
F 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
G 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
H to vest the financial institutions through special statutes, the power
..\

MIS MADRAS PETROCHEM LTD.& ANR. v. BIFR & ORS. 455
(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.
E
r We may now consider the main enforcing provision which is
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 clas·sified 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
· creditor must serve a notice in writing to the borrower requiring G
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

I1
456 SUPREME COURT REPORTS [2016] II S.C.R.

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
B 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
c 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
Act, 1992, relate to securities generally, whereas the Recovery Of Debts
F D~e 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: -
MIS MADRAS PETROCHEM LTD.& ANR. v. BIFR & ORS. 457
'[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 because- of the bar contained' in Section 22(1) of the E
Sick Industrial Companies (Special Provisio~s) 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. G
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
458 SUPREME COURT REPORTS f2016l l l S.C.R.

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
B
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
c 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
E 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
F 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
M/S MADRAS PETROCHEM LTD.& ANR. v. BIFR & ORS. 459
[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
paragraph nos. 66 and 68).
c·
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
far, the provisions of the Amending Act and the Companies Act E
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 way·to the Sick Industrial Companies (Special Provisions)
Act, 1985 which is a later and special enactment. (see paragraphs 22 to
24). G
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
J
460 SUPR,EME COURT REPORTS - [2016) 11. S.C.R.

A 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
B 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
c 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'
-D
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."

E 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.
F
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
G or financial institutions, through a special pro~edure, 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.
H Parliament must be deemed to have had knowledge of the earlier
M/S MADRAS PETROCHEM LTD.& ANR. v. BIFR & ORS. 461
[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 D
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 E
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 F
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. .
obstante clause of the RDDB Act does not permit us to take 0
that view. Though the RDDB Act is the later enactment. sub-
section (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
462 SUPREME COURT REPORTS [2016] 11 S.C:R.
•.

A . 33. A con,spectus._ofthe aforesaid decisions shows that the Sick
Industrial Co~panies (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
B
held to prevail only in a sjgi~fion where the reach of th"e 11011 obsta11te
clause in the later Act is limited - such as in the case of the Arbitration
arid, Conciliati~n 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
E ~ompitnies (Special Provisions) Act, 1_985 un1ike Section 34(2) of the
Recov¢ry,ofDebts Due To Banks and F~ncial 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 a~diticm 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 Debts·Due 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)
: .. . . . ' .
M/S MADRAS PETROCHEM LTD.& ANR. v. BIFR & ORS. 463.
[R. F. NARJMAN, JJ

Act, 1985. This is for the obvious reason that the framers of the A
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
B
Finam;ial 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, 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 c
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
D
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 E
Recovery of Debts Due to Banks and Finarn;ial Institutions Act, 1993 in
which sub-section (l)ofS~ction 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)". F
' 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 G
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
H
464 SUPREME COURT REPORTS [2016] 11 S.C.R.

A 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
B
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,
c 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
D
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
E
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, 741
cases were recommended for winding up, and 626 cases were
F 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
G 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.
H
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
B
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 c
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 D
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 E
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 F
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 G
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
H
466 SUPREME COURT REPORTS [2016] 11 S.C.R.

A 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 vis-
a-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·
B
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· bank-
c wise, group-wise. As per the said table, the opening balance of Non-
performing 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 billi~n
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
D 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
__ E are in staggering figures and at long last at least one statutory measure
has prov~d 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.
F
.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.
H
MIS MADRAS PETROCHEM LTD.& ANR. v. BIFR & ORS. 467
[R. F. NARJMAN, J.]

Learned counsel argued that Section 37 of the Securitisation and A
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
B
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 Ind~strial 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 c
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)
D
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 non-
reference to the Sick Industrial Companies (Special Provisio~s) Act,
1985 in Sect-ion 3 7 of the Securitisation and Reconstruction of Financial
Assets and Enforcement of Security Interest Act, 2002 was deliberate, E
as has been held ·by us hereinabove.
43. Shrj Sundaram is also correct when he refers to the judgment
of this Court in·Shree Chamuridi Mopeds v. Church of South India
Trust Association, (1992) 3 SCC I. In the said judgment, this Court'\
has held: F
"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 G
· ·· 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
H
468 SUPREME COURT REPORTS ,(· r10161 11 S.C.R.

A 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
B
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
c 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
D
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
E 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
F 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
G 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
H
·MIS MADRAS PETROCHEM LTD.& ANR. v. BIFR & ORS. 469
[R. F. NARIMAN, J.]

on November 6, 1991 when the Division Bench passed the order A
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
·, ·- B
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 D
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. E~ch of these judgments
was delivered in different contexts. The first judgment of Kihoto E
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. F
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) G
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
H
470 SUPREME COURT REPORTS [2016] 11 S.C.R.

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
v.
Aqua Pvt. Ltd. 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 referen~ce 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.

E 48. What has to be examined is ·whether this purely literal
rendering ofthe expression "where a reference is pending" is corr~ct 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
F 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
held that the moment the reference is registered, an inquiry as
D
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:
F
, 49. The expression "reference" used_ in Section 15(1) proviso 3 is
used in contra distinction to the expression "proceedings" in S~ction 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 t~ird 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 ofthe·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". (See Ramanatha Aiyar's Law H
472 SUPREME COURT REPORTS f20J6l l l S.C.R.

A 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
B
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
c 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
D
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
E 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.

H
MIS MADRAS PETROCHEM LTD.& ANR. v. BIFR & ORS. 473
[R. F. NARIMAN, J.]

51. A recent judgment of this Court in Pegasus Assets A
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
B
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 c
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
D
Act. In a significant paragraph, this Court has held:
"The aforesaid view commends itself to us also because ofclear
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
E
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. F
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. G
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).

H
474 SUPREME COURT REPORTS f20161 11 S.C.R.

A 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 post-
decree stage were held to be outside·the purview of Section 22 of the
Sick Industrial Companies "(Special Provisions) Act, 1985. (see paragraph
35).
B
_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
C· 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.
2. Where a secured creditor of a sick industrial company seeks
D 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,
E 2002, notwithstanding the provisions of Section 22 of the
Sick Industrial Companies (Special Provisions) Act, 1985.
3. 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 amourit·outstanding
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. ·
4. 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
H
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 ofFi~ncial Assets and C
Enforcement of S~rity 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. D
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
referen~e so.as to thwart taking of any steps·by 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 O~issa 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
asmore 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 Intere~t Act, 2002. The appeals
are accordingly dismissed. ·

Bibhuti Bhushan Bose Appeals dismissed. H .