Winding-up bar and section 446 jurisdiction limits prevent maintainability of applications against a sick industrial company.

Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 bars an application filed within winding-up proceedings against a sick industrial company, because the proceeding is treated as part of the winding-up process rather than an independent action; the application was therefore not maintainable. Section 446 of the Companies Act, 1956 applies only where a winding-up order is operative or a provisional liquidator has been appointed; as that jurisdictional basis was absent, the provision did not confer maintainability. The application accordingly failed on both statutory grounds, leaving relief to be sought before BIFR.

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Issues: (i) Whether section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 barred the application filed in the winding-up proceedings. (ii) Whether section 446 of the Companies Act, 1956 conferred maintainability of the application in the absence of an operative winding-up order or appointment of a provisional liquidator.

Issue (i): Whether section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 barred the application filed in the winding-up proceedings.

Analysis: Section 22 suspends proceedings against the sick industrial company in relation to winding up and allied actions. The application was not an independent proceeding outside the winding-up case but was filed within the winding-up proceedings. The factual setting was therefore distinct from a suit for return of property, and the statutory bar operated on the proceeding as presented.

Conclusion: The bar under section 22 applied and the application was not maintainable.

Issue (ii): Whether section 446 of the Companies Act, 1956 conferred maintainability of the application in the absence of an operative winding-up order or appointment of a provisional liquidator.

Analysis: Section 446 applies when a winding-up order has been passed or a provisional liquidator has been appointed. On the facts, the order appointing the provisional liquidator had been stayed and the company had gone out of liquidation. The jurisdictional foundation for invoking section 446 was therefore absent, and the protective scheme of that provision did not assist the applicant.

Conclusion: Section 446 did not apply and the application was not maintainable.

Final Conclusion: The application failed on both statutory grounds and was rejected, leaving the applicant to seek appropriate relief before the BIFR.

Ratio Decidendi: A proceeding filed within winding-up proceedings against a sick industrial company is barred by section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985, and section 446 of the Companies Act, 1956 applies only when a winding-up order is operative or a provisional liquidator has been appointed.

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