TMI Blog2010 (8) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... 95 OF 2003, 12 & 48 OF 2004, 52 OF 2006 AND 1 OF 2007 - - - Dated:- 18-8-2010 - H.N. NAGAMOHAN DAS, J. Sriranga M. Ram Bhat, Pranati S. Bhat, Goutham, Rajeswar, Y. Hariprasad, Anant Mandgi, G. Gangireddy, L. Mohan for the Petitioner. S.V. Giridhar and Nataraj Ballal for the Respondent. ORDER 1. These petitions are filed under section 433( e ) of the Companies Act, 1956 for winding up of the respondent-company. 2. Respondent-company is a company incorporated under the provisions of the Companies Act as a Public Limited Company. The registered office of the respondent-company is situated at Bangalore. The main object of the respondent-company is manufacture and sale of refrigeration equipments and other allied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge, if an order of winding up is passed, the Official Liquidator will step in and will prevent the secured creditors from proceedings with under the provision of SARFAESI Act. This apprehension in the mind of the Objector-Secured creditors is unfounded. 8. Section 537 of the Companies Act, specifies that where a company is being wound up by the Court, any attachment, distress or execution put in force without leave of the Court against the estate of the company or sale shall be void. On the other hand, section 13 of SARFAESI Act, specifies the right to the secured creditors to enforce the security interest against the debtor company. Supreme Court in Allahabad Bank v. Canara Bank [2000] 4 SCC 406 held a under : "50. For the afore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny - so far as the monies realised under the RDB Act are concerned - has to be done only by the Tribunal and not by the Company Court. The next question is as to the manner of distribution of these monies between the banks or financial institutions on the one hand and the other creditors, secured or unsecured of the company under winding-up. This question depends upon the effect of section 19(19) of the RDB Act as introduced by Ordinance 1 of 2000." 9. In view of the law declared by the Apex Court in Allahabad Bank s case ( supra ) provisions of SARFAESI Act overrides section 537 of the Companies Act. Therefore, Objectors being the secured creditors need not seek leave of the Company Court for the sale of the assets of the respondent- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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