ArticleConclusionThe professional responsibility of whistle blowers shows that an important role is played by them indisclosing the unethical practices/misconduct etc. Ironically they have the fear of losing their job, retaliationetc. for blowing the whistle against wrong practices and corruption in the organization. A system shouldbe maintained for providing legal immunity and protection against retaliation. It will lead to responsibleand conscientious whistle blowing. Moreover for developing a better corporate governance practices inthe country it becomes imperative to look for holistic solutions and empower the whistle blowers withclear guidelines for prosecuting intimidation of or a retaliation against the complainants including impositionof fines as well as disposal of cases on fast track basis.<strong>March</strong>, <strong>2012</strong> 14 NIRC-ICSI Newsletter
Legal UpdatesLEGAL UPDATESCASE-1:[In the Supreme Court of India, Special Leave Petition]Raheja Universal LimitedVersus.NRC Limited & Ors[February 07, <strong>2012</strong>]Crux of the Case:The scope of Section 22 of the Sick Industrial Companies(Special Provisions) Act, 1985 (for short, the ‘Act of 1985’)has overriding application over the provisions of Transfer ofProperty Act, 1882 (for short, the ‘Act of 1882’),including on Section 53A and Section 54 of the latter Act, arisesfor consideration in the present case.Brief facts of the case:The Respondent-Company, ‘National Rayon CorporationLimited’, incorporated in year 1946, was declared a ‘sick industrialcompany’ in the year 1987, but as its net worth turned positive, itwas discharged from the purview of the Sick Industrial Companies(Special Provisions) Act, 1985 (for short, the ‘Act of 1985’). Tofurther strengthen its financial position, the Respondent-Companydecided to dispose of the surplus land. A Memorandumof Understanding was signed on 13th April, 2006 with‘Raheja Universal Limited’ (hereinafter referred to as the‘Appellant-Company’) for sale of land. An agreement dated1st <strong>March</strong>, 2007 was signed between the parties to pay theconsideration in installments. After the payment of 2 nd installment,the Appellant-Company defaulted in payment of 3 rd instalment.A new Memorandum of Understanding was entered under whichthe Appellant-Company promised to advance the payment ofinstallments and the possession of the property was also givento the Appellant-Company. There is some dispute between theparties with regard to the manner and time in which thesepayments to be made. Thus the Respondent Company could notrealize any money.On 3rd December, 2008, the Respondent-Company moved anapplication before the BIFR for declaring the Company as SickCompany under Section 15(1) of the Act of 1985. The BIFR,vide its order dated 16th July, 2009, fixed the cut-off date as 30thJuly, 2007. . It directed that the sale of assets, includinginvestments, will require prior approval of the BIFR. Italso appointed the Punjab National Bank as the OperatingAgency under Section 17(3) of the Act of 1985.As per Section 18(8) of the Act of 1985, the cut-off date is the dateof coming into operation of the sanctioned scheme, or any provisionsthereof. In other words, all matters relating to the companywould, after this date, be within the ambit and scope ofthe provisions of the Act of 1985 and, as already noticed,the BIFR had declared the cut-off date to be 30th July, 2007.Further, the BIFR treated the land as an investment and hasput certain restrictions thereupon, including that of sale of assets,which required the prior approval of BIFR as theRespondent-Company was under the purview of the Actof 1985.Aggrieved from this order, an appeal was filed to the AppellateAuthority for Industrial and Financial Reconstruction (forshort the ‘AAIFR’) under Section 25 of the Act of 1985. TheAAIFR made major variations in the order of the BIFR. Firstly, itheld that BIFR should not have fixed 30th July, 2007 as thecut-off date and secondly, that the provisions of Section 22Awould not apply to an agreement for sale which had alreadybeen entered into, registered, acted upon and was in theprocess of completion. The provisions of Section 22A willnot apply to the agreement for sale already entered into,registered, and acted upon and in the process of completion.Had it been the intention of the legislature to cover thepast transactions within the ambit of Section 22A, theprovisions for suspension of existing contracts etc. wouldnot have been provided under Sub-Section (3) of Section 2of SICA under which the BIFR has not passed any order.Readiness and willingness of the parties to the saleagreement to honour the contract is also a paramountconsideration.”An appeal was filed to the High Court. The High Court,primarily, framed two questions for discussion: firstly, whetherthe land covered by the agreement of sale dated 1st <strong>March</strong>,2007 and supplementary agreement signed on 29th September,2007, was an existing asset of the Respondent-Companyand secondly, what was the scope of the powers of the BIFR underSection 22(3) of the Act of 1985. The High Court quashed theorder of the AAIFR and confirmed the order passed bythe BIFR.The matter reached to the Supreme Court.The Supreme Court observed the following in this case:“we are unable to find any merit in the submission of theRespondent-Company that the BIFR had no jurisdiction to passsuch directives. AAIFR had disturbed the above order andheld that the contract between the parties could not besuspended under Section 22(3) and it was not in the interest ofthe Respondent-Company. In other words, it had permittedthe sale to be completed without any restriction. This orderwas set aside and the order of the BIFR was restored by the HighCourt. We find no jurisdictional or other error in the orderof the High Court in restoring the order of the BIFR. The landbeing the primary asset of the Respondent-Company, couldnot be permitted to be dissolved by sale or otherwisewithout the consent and approval of the BIFR. The BIFR is theauthority required to oversee the entire affairs of a sickindustrial company and to ensure that the same are withinthe framework of the scheme formulated and approved by theBoard for revival of the company in accordance with the provisionsof the Act of 1985.”CASE-2:[In the Madras High Court]T.NARAYANANvs.OFFICIAL LIQUIDATOR & ANR.[October 19, 2011]Crux of the Judgment: Mere irregularities in the publication of theadvertisement of the Winding up order cannot be a base forchallenging the validity of winding up order. Non- compliance of<strong>March</strong>, <strong>2012</strong> 15 NIRC-ICSI Newsletter
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