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2016 (8) TMI 791 - HC - Companies LawProceeding under the SARFAESI Act - winding up proceedings - whether OLR cannot proceed because the Company (in Liqn.) is before the BIFR? - Held that:- In the facts of the present case also, the debts owed by the Company (in Liqn.) to IOB have been assigned to ARCIL [which admittedly is an ARC] long before the reference [on behalf of the Company (in Liqn.)] was filed before the BIFR. This being the factual scenario, as per the 2nd proviso to section 15(1) of SICA, 1985, the reference itself was not maintainable and non-est in the eyes of law. Consequently, there is no question of the Company (in Liqn.) and/or its Ex-Directors contending that the Company (in Liqn.) gets protection under section 22 of SICA, 1985. In view of this clear enunciation of the law, I have no hesitation in rejecting the argument of Mr Shetye that this OLR cannot proceed because the Company (in Liqn.) is before the BIFR. As far as the prayers in the OLR are concerned, Mr Shetye points out that as far as the advertisement charges of ₹ 25,749/- are concerned [prayer clause (a)], the said directions have already been complied with. The representative of the Official Liquidator who is present in Court today, has also confirmed this fact. In this view of the matter, no directions in this regard are necessary save and except that the Official Liquidator is directed to pay the charges of the advertising agency out of the sum of ₹ 25,749/- already deposited with the Official Liquidator. Official Liquidator has also sought a direction against IOB to take the physical possession of the factory premises and appoint security guards for the same [prayer clause (b)]. Ms Awasthi, appearing on behalf of ARCIL states that symbolic possession of the factory premises was taken by IOB and thereafter IOB also made an application under section 14 of the SARFAESI Act for the purposes of taking physical possession. This application under section 14 of the SARFAESI Act was allowed by the Magistrate vide his order dated 29 November, 2011 and appointed the authorized officer of IOB to take the physical possession of the factory premises. Thereafter, Mr Nikumbh Kanakiya and others filed a Securitisation Application No. 111 of 2011 before the DRT-III challenging the actions initiated by IOB. Though, initially the DRT has passed an interim injunction restraining IOB from proceeding under the SARFAESI Act, on 8 December, 2012, the said SA was dismissed for default. Thereafter, IOB has assigned the debts owed by the Company (in Liqn.), in favour of ARCIL. ARCIL is in the process of amending / modifying the order passed by the Magistrate on 29 November, 2011 for taking physical possession of the factory premises in the name of ARCIL instead of IOB. This Application is still pending. Considering that IOB had already taken steps under the SARFAESI Act for taking possession of the factory premises, and even ARCIL has now taken the steps in that regard, the directions sought in prayer clause (b) of the OLR are rendered infructuous. As Company has already been ordered to be wound up and the Official Liquidator has already been appointed, there is no question of the Company and/or its Ex-Directors carrying on its business after the date of the winding up order.
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