Sick Industrial Companies Act, 1985 Group A7. What is it? “An Act to make in public interest, special provisions with a view to securing the timely detection.

Sick Industrial Companies Act, 1985

Group A7

What is it? “An Act to make in public interest, special

provisions with a view to securing the timely detection of sick and potentially sick companies owning industrial undertakings, the speedy determination by a Board of experts of the preventive, ameliorative, remedial and other measures which need to be taken with respect to such companies and the expeditious enforcement of the measures so determined and for matters connected therewith or incidental thereto.”

What it means

The act aims to• Timely detect sick and potentially sick

companies

• Speedily determine preventive, ameliorative and remedial measures for these companies

• Expedite the enforcement of these measures

What is a sick company?

“Sick industrial company" means an industrial company (being a company registered for not less than five years) which has at the end of any financial year accumulated losses equal to or exceeding its entire net worth.

Board for Industrial and Financial Reconstruction There shall be established a Board to be

known as the "Board for Industrial and Financial Reconstruction" to exercise the jurisdiction and powers and discharge the functions and duties conferred or imposed on the Board by or under this Act

The Board shall consist of a Chairman and not less than two and not more than fourteen other Members, to be appointed by the Central Government

The chairman and members of the board have to be qualified as per the act

The Appellate Authority Appointed by the government for hearing appeals against

the order of the Board under this act The Chairman shall be a person who is or has been a

Judge of the Supreme Court or who is or has been a Judge of a High Court for not less than five years

A Member of the Appellate Authority shall be a person who is or has been a Judge of a High Court or who is or has been an officer not below the rank of a Secretary to the Government of India or who is or has been a Member of the Board for not less than three years

Term of Office of Chairman and Other Members

The chairman and every other member shall hold office for such period, not exceeding five years, as may be specified by the Central Government in the order of his appointment, but shall be eligible for reappointment provided that no person shall hold office as the chairman or other member after he has attained the age of sixty-five years

Removal of Members The Central Government may remove from

office any Member, who • has been adjudged as insolvent • has been convicted of an offence, which, in the

opinion of the Central Government, involves moral turpitude

• has become physically or mentally incapable of acting as a Member

• has acquired such financial or other interest as is likely to affect prejudicially his functions as a Member

• has so abused his position as to render his continuance in office prejudicial to the public interest

Salaries of Members

The salaries and allowances payable to the Members and the administrative expenses, including salaries, allowances and pension, payable to or in respect of the officers and other employees of the Board and the Appellate Authority shall be defrayed out of the Consolidated Fund of India

Vacancies

Vacancies not to invalidate proceedings of board and Appellate authority

Members and staff of board and Appellate authority to be public servants

Constitution of Benches of board or Appellate Authority

Jurisdiction, power and authority to be exercised by benches

Benches shall be constituted by the Chairman Each bench shall not consist of more than two members In case of difference of opinion, the point shall be decided

by majority

Procedure of Board and Appellate Authority

Powers to regulate:• Procedure and conduct of the business• Procedure of benches including the places where sitting shall be held• Delegation of such powers and functions to one or more members

Same powers as are vested in a civil court in following matters:• Enforcing the attendance of any witness and examining him on oath• the discovery and production of document or other material object producible as

evidence • Reception of evidence on affidavit• Requisitioning of any public record from any court or office• Issuing of any commission for examination of witness

Power to determine the extent to which person interested in the subject matter to be discussed may be allowed to take part in the proceedings

Proceedings before Board or Appellate Authority

Board or the Appellate authority shall be deemed to be civil court( Section 195 and Chapter XXVI of the code of criminal procedure, 1973)

Every proceeding shall be deemed to be the Judicial proceeding( Section 193 and 228 and for the purpose of section 196 of IPC)

References to Board

If a company becomes a sick company, then its board of directors shall make a reference to the board regarding the measures to be taken with regards to the company within 60 days.

Without prejudice to the provisions of the above section, the Central Government or the Reserve Bank or a State Government or a public financial institution or a State level institution or a scheduled bank may, if it has sufficient reasons to believe that any industrial company has become, for the purposes of this Act, a sick industrial company, make a reference in respect of such company to the Board for determination of the measures which may be adopted with respect to such company

Inquiry into working of Sick Industrial Companies Board may make such inquiry as it may deem fit for determining

whether any industrial company has become a sick industrial company :• Upon receipt of a reference w.r.t such company under sec 15

• Upon information received about the financial situation of the company The Board may, If it deems necessary so to do for the

expeditious disposal of an inquiry under sub-section (1), require by order any operating agency to enquire into and make a report with respect to such matter as may be specified in the order.

Board shall complete its inquiry as expeditiously as possible Board may appoint special directors to safeguard the financial

and other interest of the company or in the public interest

Inquiry into working of Sick Industrial Companies Any special director appointed shall:

• hold office during, the pleasure of the Board and may be removed or substituted by any person by order in writing by the Board

• not incur any obligation or liability by reason only of his being a director or for anything done or omitted to be done in good faith in the discharge of his duties as a director or anything in relation thereto

• not be liable to retirement by rotation and shall not be taken into account for computing, the number of directors liable to such

retirement • not be liable to be prosecuted under any law for anything, done or

omitted to be done in good faith in the discharge of his duties in relation to the sick industrial company

Power of Board to make suitable order on the completion of inquiry Board shall decide whether it is practical for the sick

company to make its net worth exceed accumulated losses within reasonable time

The board may then give some time to the company as it may deem fit to make its net worth exceed its accumulated losses

Board may ask a operating agency to prepare a scheme if it is not possible for the sick company to make its net worth exceed its accumulated losses

if the operating agency makes a submission in that behalf, review such order and modify the order in such manner as it may deem appropriate.

Preparation and Sanction of Schemes

Operating agency shall prepare as expeditiously as possible schemes providing following measures:• Financial reconstruction of the sick company

• Proper management of the sick company

• Amalgamation of sick company with some other company or vise versa

• Sale or lease of a part or whole of any industrial undertaking of the sick company

• Other remedial or preventive measure as applicable

Preparation and Sanction of Schemes

Schemes must provide any one or all of the following:• the constitution, name and registered office, the capital, assets,

powers, rights, interests, authorities and privileges, duties and obligations of the sick industrial company or, as the case may be, of the transferee company

• the transfer to the transferee company of the  business, properties, assets and liabilities of the sick industrial company on such terms and conditions as may be specified in the scheme

• Any change in the board of director of the sick company and the period for which new appointments shall be made

• Alteration of the memorandum or articles of association of the sick industrial company for the purpose of altering the capital structure

• Reduction in the interest of the shareholders of the sick industrial company to the extent necessary for the rehabilitation of the company

Preparation and Sanction of Schemes

Board may make modifications in the draft scheme based on recommendations received from various parties

The schemes shall be sanctioned and implemented on such date as specified by the board

If a sanctioned scheme provides for any transfer of property, the property may be transferred on and from the date of the sanctioned scheme coming into operation

On and from the date of coming into operation, the sanctioned scheme shall be binding on all the concerned parties

Board may monitor periodically the implementation of the sanctioned scheme

Rehabilitation by Giving Financial Assistance For rehabilitation of a sick industrial

company, financial assistance by way of loans, advances or guarantees may be provided by• Central Government• State Government• Scheduled Bank• Public Financial Institution

Arrangement for Continuing Operations During the course of the inquiry, the sick

industrial company, central government, reserve bank, scheduled bank or any other institution providing or intending to provide any financial assistance to the sick industrial company may make an application to the board to • Continue the operations of the sick industrial

company• Suggest a scheme for the financial

reconstruction of the sick industrial company

Winding up of a Sick Industrial Company If the board, after conducting an inquiry is of the

opinion that• The sick industrial company will be unable to make its

net worth more than its accumulated losses• The sick industrial company will be unable to meet all its

financial obligations• The sick industrial company will be unable to do either of

the above within a reasonable amount of time It may forward its opinion to the high court

stating that it is just and equitable for the company to be wound up

Preparation of Inventory The board can, itself or through an agency,

prepare• with respect to a company, a complete inventory of

• (i) all assets and liabilities of whatever nature;

• (ii) all books of account, registers, maps, plans, records, documents of title or ownership of property and all other documents of whatever nature relating thereto;

22. SUSPENSION OF LEGAL PROCEEDINGS, CONTRACTS, ETC. Where in respect of an industrial company, an inquiry under section 16 is pending, or any scheme referred to under section 17 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 (1 of 1956) or any other law or the memorandum and articles of association of 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 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 company shall lie or be proceeded with further, except with the consent of the Board or, as the case may be, the Appellate Authority.

22A. DIRECTION NOT TODISPOSE OF ASSETS

The Board may, if it is of opinion that any direction is necessary in the interest of the sick industrial company or creditors or shareholders or in the public interest, by order in writing direct the sick industrial company not to dispose of, except with the consent of the Board, any of its assets -

(a) during the period of preparation or consideration of the scheme under section 18; and

(b) during the period beginning with the recording of opinion by the Board for winding up of the company under sub-section (1) of section 20 and up to commencement of the proceedings relating to the winding up before the concerned High Court.

23. LOSS OF FIFTY PER CENT NET WORTH BY INDUSTRIAL COMPANIES.

(1) If the accumulated losses of an industrial company, as at the end of any financial year (hereinafter referred to as the relevant financial year) have resulted in erosion of fifty per cent or more of its peak net worth during the immediately preceding four financial years, -

(a) the company shall, within a period of sixty days from the date (hereinafter referred to as the relevant date) of finalisation of the duly audited accounts of the company for the relevant financial year - (i) report the fact of such erosion to the Board; and (ii) hold a general meeting of the shareholders of the company for considering such erosion; (b) the board of directors shall, at least twenty-one days before the date on which the meeting under sub-clause (ii) of clause (a) is held, forward, to every member of the company a report as to such erosion and the causes for such erosion;

23A. PROCEEDINGS ON REPORT, ETC. OF LOSS OF FIFTY PER CENT NET WORTH

Without prejudice to the provisions of clause (a) of sub-section (1) of section 23, the Central Government or the Reserve Bank or a State Government or a public financial institution or a State level institution or a scheduled bank may, if it has sufficient reasons to believe that the accumulated losses of any industrial company have resulted in erosion of fifty per cent or more of its peak net worth during the immediately preceding four financial years, report the fact of such erosion to the Board.

Where the Board, after consideration of the relevant facts and circumstances and after giving an opportunity of being heard to all concerned parties, is of the opinion that the industrial company is not likely to make its net worth exceed the accumulated losses within a reasonable time while meeting all its financial obligations and that  the company as a result thereof, is not likely to become viable in future and that it is just and equitable that the company should be wound up, the Board may record and forward its opinion to the concerned High Court in relation to the company as if it were a sick industrial company, and the provisions of sub-sections (2), (3) and (4) of section 20 shall apply accordingly.

23B. POWER OF BOARD TO CALL FOR PERIODIC INFORMATION

On receipt of a report under sub-clause (i) of clause (a) of sub-section

(1) of section 23 or under sub-section (1) of section 23A or upon information or its own knowledge under sub-section (2) of section

23A, the Board may call for any periodic information from the company as to the steps taken by the company to make its net worth exceed the accumulated losses and the company shall furnish such information.

24. MISFEASANCE PROCEEDINGS

If, in the course of scrutiny or implementation of any scheme or proposal, it appears to the Board that any person who has taken part in the promotion, formation or management of the sick industrial company or its undertaking, including any past or present director, manager or officer or employee of the sick industrial company - (a) has misapplied or retained, or become liable or accountable for, any money or property of the sick industrial company; or (b) has been guilty of any misfeasance, malfeasance or non-feasance or breach of trust in relation to the sick industrial company, the Board may, by order, direct him to repay or restore the money or property or any part thereof, with or without interest, as it thinks just, or to contribute such sum to the assets of the sick industrial company or the other person, entitled thereto by way of compensation in respect of the misapplication, retainer, misfeasance or breach of   trust, as the Board thinks just and also report the matter to the Central Government for any other action which that Government may deem fit.

25. APPEAL

Any person aggrieved by an order of the Board made under this Act may, within forty-five days from the date on which a copy of the order is issued to him, prefer an appeal to the Appellate Authority :

Provided that the Appellate Authority may entertain any appeal after the said period of forty-five days but not after sixty days from the date aforesaid if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.

On receipt of an appeal under sub-section (1), the Appellate Authority may, after giving an opportunity to the appellant to be heard, if he so desires, and after making such further inquiry as it deems fit, confirm, modify or set aside the order appealed against or remand the matter to the Board for fresh consideration.

26. BAR OF JURISDICTION.

No order passed or proposal made under this Act shall be appeasable except as provided therein and no civil court shall have jurisdiction in respect of any matter Which the Appellate Authority or the Board is empowered by, or under, this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken  or to be taken in pursuance of any power conferred by or under this Act.

27. DELEGATION OF POWERS.

The Board may, by general or special order, delegate, subject to such conditions and limitations, if any, as may be specified in the order, to any Member or Secretary or other officer or employee of the Board or other person authorised by the Board to manage any industrial company or industrial undertaking or any operating agency, such powers and duties [except the powers and duties under sub-sections (2) and (4) of section 16, section 17, sub-sections (3) and (4) of section 19, sub-sections (1) and (4) of

section 20, sub-section (3) of section 22 and section 24] under this Act as it may deem necessary

Returns and Information

The Board can provide and collect information from the Central Government, Reserve Bank, other banks and FIs, or the sick company

Possession of Property

The Board can take possession of property or books of accounts or other documents of the sick industrial company by directing the Chief Metropolitan Magistrate or District Magistrate to do so

The actions of the magistrates so instructed cannot be called into question in a court of law

Protection of Action Taken in Good Faith

No legal action can be taken against the board or appellate authority or any member for any loss resulting from an action taken in good faith or in pursuance of the act

Pending Proceedings

Proceedings related to sick companies started before the enactment of this act shall continue as they were

Penalty for Offences

Whoever violates the provisions of the Act or any scheme or any order of the Board, or the Appellate Authority and whoever makes a false statement or gives false evidence to the Board or the Appellate Authority, shall be punishable with simple imprisonment for a term which may extend to three years and shall also be liable to fine

Offences by Companies

Where any offence, punishable under this Act has been committed by a company, every person who, at the time the offence was committed was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly

Power to Remove Difficulties

If any difficulty arises in giving effect to the provisions of this Act or the rules, scheme or orders made there under, the Central Government may, by notification remove the difficulty

Power to Make Rules

The Central Government has the power to make new rules for carrying out the provisions of this act

Thank you