Ministerial scrutiny cannot replace adjudication on eligibility, and an invalid refusal keeps the reference pending for insolvency remedies.

A ministerial authority empowered only to scrutinise a sick industrial company reference cannot decide a disputed question of eligibility, such as whether the applicant is an industrial company; that issue belongs to the adjudicatory Board or Bench, and an invalid refusal of registration is non est in law. Once the refusal is treated as invalid, the reference remains pending and the company may invoke the later insolvency code's saving provisions, including the statutory remedy for abated proceedings, notwithstanding a winding-up order. The framework also preserves consideration of moratorium and going-concern mechanisms before the NCLT.

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Issues: (i) Whether the Registrar, Secretary or Chairman of the Board could refuse registration of a reference under the sick industrial companies law by deciding whether the company was an industrial company; (ii) Whether the rejected reference must be treated as pending so that the company could invoke the insolvency code notwithstanding the winding-up order.

Issue (i): Whether the Registrar, Secretary or Chairman of the Board could refuse registration of a reference under the sick industrial companies law by deciding whether the company was an industrial company.

Analysis: The statutory scheme distinguished between the preliminary scrutiny required at the stage of receipt of a reference and the adjudicatory function of deciding contested questions. The regulations authorised the Secretary or Registrar only to scrutinise the reference, register it if in order, or decline registration if procedurally defective. Determining whether the applicant was an industrial company required adjudication on a contested question of fact and law, which lay within the jurisdiction of the Board or a Bench and not the ministerial authorities at the registration stage.

Conclusion: The refusal of registration was non est in law and the reference had to be treated as pending before the Board.

Issue (ii): Whether the rejected reference must be treated as pending so that the company could invoke the insolvency code notwithstanding the winding-up order.

Analysis: Once the refusal of registration was held invalid, the reference was deemed to have remained pending when the insolvency code came into force. Section 252 of that Code preserved the company's right to seek recourse in respect of abated proceedings, and the statutory framework concerning moratorium, management of the corporate debtor as a going concern, and duties of the resolution professional was held to be available for consideration by the adjudicating authority. The winding-up order did not, on these facts, foreclose that statutory remedy.

Conclusion: The company was entitled to pursue remedies under the insolvency code before the National Company Law Tribunal.

Final Conclusion: The appeal failed to dislodge the company's entitlement to pursue the statutory insolvency remedy, and the matter stood disposed of on that basis.

Ratio Decidendi: A statutory authority empowered only to scrutinise a reference cannot usurp adjudicatory power on a disputed question of eligibility, and an invalid refusal of registration leaves the reference pending so that subsequently enacted saving provisions may be invoked.

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