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2018 (9) TMI 597 - HC - Companies LawWinding up proceeding - application of provisions of the SARFAESI Act - Held that:- The official liquidator will in that case be also not dependent on the secured creditors to put in funds to protect the assets of the company (in liquidation) at Silvasa or for the administrative charges to carry out the sale. The applicant bank can easily obtain actual physical possession of the Silvasa property by removing the encumbrances, if any more conveniently by applying the provisions of the SARFAESI Act and the said Rules. If the official liquidator has to sale the assets of the company (in liquidation) he would be compelled to sell the same with encumbrances, if any as it will take the official liquidator more time to remove the encumbrances if any in the event he chooses to remove such encumbrances by observing the legal formalities. The official liquidator may have to either file proceedings or defend in a competent court having jurisdiction over Silvasa Property from its office at Kolkata. The applicant bank is therefore permitted to remain outside the winding up proceedings since it had initiated proceedings before the DRT prior to the company being wound up and is also allowed to sell the Silvasa property in association with the official liquidator. The same procedure as laid down above has to be followed in respect of selling the movables of which the applicant bank claims to be its securities. The official liquidator, if satisfied that the assets of the company (in liquidation) are secured asset of the bank he should make over the symbolic possession thereof or the actual physical possession if he has taken the same in the meantime to the applicant bank to effect the sale. The applicant bank should bring to the notice of DRT about the restraint order dated 5th May, 2015 and get it varied and/or modified prior to proceeding for to sale by invoking the provisions of the SARFAESI Act pursuant to this order upon notice to the official liquidator who has to be also substituted in the OA pending before DRT in the place of the company (in liquidation).
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