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TMI Blog2002 (12) TMI 496X X X X Extracts X X X X X X X X Extracts X X X X ..... itutions Act, 1993 (hereinafter referred to as the "Act") exercises its power under section 19(18)(e) and appoints a Commissioner for preparation of an inventory of the properties of the defendants, whether prior leave of the company judge under the provisions of the Companies Act is necessary, since the company in question is under liquidation and a provisional liquidator has been appointed. The appellant-bank as well as the other members' consortium issued notice to the company and its guarantors calling upon them to pay the outstanding debts to which the company replied and acknowledged the liability to pay the amount. Before the filing of an application to the Tribunal under the Act, in a winding up petition before the learned company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... risdiction of the High Court, it is unthinkable that the Tribunal would pass orders/directions in respect of the matters, which are in seisin of the company judge, and the properties in question, are in custody of the provisional liquidator. The High Court also came to the conclusion that the judgment of this court in Allahabad Bank v. Canara Bank [2000] 4 SCC 406 [2001] 101 Comp. Cas. 64 (SC) is not an authority for the proposition whether any leave of the company judge is necessary before the Commissioner appointed by the Debts Recovery Tribunal is authorised to hold an inventory of the properties, which properties remained in the custody of the provisional liquidator by virtue of application of the provisions of the Companies Act. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tualities, there may be a clash between the Tribunal and the company judge, and therefore, the matter should be referred to a larger Bench. The power of the Tribunal under the Act to appoint a Commissioner for preparation of an inventory of the properties of the defendant is undisputed in view of the clear and unambiguous provisions contained in section 19(18)(e) and jurisdiction of other courts, excepting the Supreme Court and High Court exercising jurisdiction under articles 226 and 227 is also ousted under section 18 of the Act in relation to matters specified in section 17. Section 17 empowers a Tribunal to exercise on and from the appointed day, the jurisdiction, powers and authority to entertain and decide applications from the banks ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidered the impact and effect of the provisions of section 456 and section 10 of the Companies Act by virtue of which it is the provisional liquidator, who remains in custody of all the properties, effects and actionable claims of the company and to allow a Tribunal to usurp any jurisdiction with regard to the said custody without leave of the court, particularly when the Tribunal is headed by a sitting or retired District Judge, whereas the company judge is a sitting judge of the High Court, will be anomalous. There may be some force in this contention, which may necessitate a re-examination of the judgment on this score in Allahabad Bank case. But in the case on hand, in view of the limited direction that has been issued by the Tribunal, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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