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2016 (2) TMI 775 - HC - Indian LawsEntitlement to proceed against the secured assets - SARFAESI Act - Held that - In the present case SBI has registered its charge under Section 125 of the Companies Act before ROC over the secured assets of company the applicant is an assignee and therefore if the applicant has not registered its charge over the secured assets before the Registrar of Companies it cannot be said that the applicant is not entitled to proceed against the secured assets. Account of the company in liquidation was declared NPA in the year 2001 by SBI - whether the applicant-bank cannot now initiate the proceedings under the SARFAESI Act against the company in liquidation after a period of five years - Held that - The aforesaid contention is misconceived. It is true that the account of the company in liquidation was declared NPA in the year 2001. However at the request of the company in liquidation the SBI has restructured the credit facilities. However so far as that facility is concerned also the company in liquidation has not complied with the terms. SBI has therefore issued the notice on 7.9.2005 to the company in liquidation and called upon the borrower to make the payment. However the borrower-company in liquidation has not made the payment as per the notice. Thereafter the SBI assigned its debts in favour of the applicant-bank by Deed of Assignment dated 23.3.2006. Thereafter the applicant-bank has issued the notice under SARFAESI Act on 15.11.2006. Thus there is no delay in initiation of the proceedings nor it can be said that SBI had waived its right to initiate action against the company in liquidation. It is further required to be noted that the Official Liquidator filed Appeal No.27 of 2007 before the DRT against the applicant-bank. However learned advocate Mr. Pahwa has placed on record the order dated 17.7.2014 passed by DRT below Exh.23 whereby the said appeal was disposed off as dismissed for default due to want of prosecution. The Official Liquidator or the intervenor has not placed any other material on record to show that the said appeal has been restored. Thus the fact remains that the Liquidator did file an appeal before the DRT. It is clarified that if the said appeal is restored on file of DRT it is open for the Official Liquidator to take all available contentions before the learned Tribunal. Thus the relief prayed for in this Judges summons is required to be allowed. The respondent no.1 herein is hereby directed to hand over the possession of the secured assets particularly described in schedule annexed at Annexure A to the applicant who has already initiated measures under the provisions of the SARFAESI Act. The applicant is also permitted to proceed further in relation to the secured assets subject to compliance of provisions of proviso to Section 13(9) of the Act. However it is clarified that the applicant-bank has to inform the Official Liquidator about the steps which it will take against the secured assets.
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