(1.) HAVING heard learned counsel for the parties and having perused the record of the case. I find no case to entertain this company petition and hence, it merits dismissal.

(2.) IT is not in dispute that the respondent-company against whom this company petition is filed for its winding up is declared a sick company under the provisions of the SICA by the Board for Industrial and Financial Reconstruction. It is also not in dispute that in terms of an order passed by the BIFR, the respondent-company is ordered to be wound up and reference to that effect is now to be made to this court under the SICA for winding up of the company in accordance with the provisions of the Companies Act. It is also not in dispute that the said order of the BIFR has not yet been given effect to because it is presently sub-judice in appeal filed by the company before AAIFR.

(3.) IT is in the aforesaid background which emerges out of the record, the question arises as to what is the fate of this company petition and what order can be passed. It is a petition filed by what the petitioner claim themselves to be the creditor of the respondent-company. They complain that they supplied certain goods to the respondent-company valuing Rs. 2,53,732. 89 on different dates between 1996 and 1997 and raised several bills but the respondent in spite of receipt of the goods did not pay its price and hence, notice under Section 434 of the Act was served on the company because it happened to be a company under the Companies Act and followed by this company petition. It was alleged that since the respondent-company has failed to pay the amount demanded and hence, it is a case of debt not being paid despite demand thereby making out a case for winding up within the meaning of Section 433 (e) ibid--i. e. , deemed inability to pay the debt, as defined under Section 434 ibid.

(4.) THE respondent-company has, inter alia, taken the aforementioned legal defence.

(5.) IN my opinion, the question, whether the company is liable to be wound up or not, is already sub-judice before the competent authority under the SICA. In fact, an order to that effect has already been passed. In case the order of BIFR is upheld in appeal, then as a necessary consequence, the matter has to come to this court for passing a final winding up order of the respondent-company. In such eventuality and at that stage all claims against the company will have to be adjudicated upon as per the procedure prescribed under the Companies Act. It will obviously include the claim of the petitioner, who will then get an opportunity to get their claim proved. In case the order of the BIFR is set aside by the appellate authority (AAIFR) and the matter is remanded for revival of the company as is being contended by the company before the AAIFR then in such eventuality, also the BIFR will have to go into the various claims of creditors to determine the financial liability on the company. In that case also the claim of the petitioner will have to be probed into.

(6.) IN view of these circumstances and the legal position emerging, there is no life in the petition as this court can otherwise not proceed to decide this winding up petition on the merits by virtue of the issue being sub-judice in the BIFR proceedings. In other words, this court cannot decide by proceeding ahe

ad as to whether a case for winding up of company is made out or not on the facts pleaded in the petition in view of embargo created by the SICA to have parallel proceedings. (7.) IN view of aforesaid discussion and the legal position emerging out of the admitted facts, I find no merit to entertain the petition. It fails and is dismissed. (8.) NO costs.