TMI Blog2018 (9) TMI 597X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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). - C.A. No. 521 of 2017 With C.P. No. 91 of 2016 - - - Dated:- 10-8-2018 - Mr. Arindam Mukherejee, J. For The Petitioning Creditor : Mr. Joy Saha, Sr. Adv. And Mr. De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India. 4. Thereafter the applicant bank issued a notice under the provisions of Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the SARFAESI Act) to the said Chandra Proteco Ltd, its Directors/Guarantors and the Corporate Guarantors on 10th November, 2014. On 11th March, 2015 the applicant Bank issued a possession notice under the provisions of Section 13(4) of the SARFAESI Act. The particulars of the immovable properties of the said company now (in liquidation) which the applicant bank claims to be its securities is provided in the schedule to the said notice at pages 377-378. 5. In the meantime on or about 31st January, 2015 the applicant initiated a proceeding under the provisions of Section of 19 of the Recovery of Debts due to Banks Financial Institutions Act, 1993 (hereinafter referred to as the RDB Act) before the Debts Recovery Tribunal-I at Kolkata [DRT] for the total outstanding amount of ₹ 134,07,33,653.64/- said to be due as on 30th July, 2015 on account of principal and accrued interest. On or about 24th September 2015 which is numbered as OA 403 of 2015, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been solely mortgaged in favour of the applicant and the other consortium members. The symbolic possession of such property had been taken much prior to that been taken by the Official Liquidator pursuant to the winding up order. The possession of the consortium of banks led by the applicant bank is, however, symbolic. 9. The applicant therefore has sought for leave of this Court to remain outside the winding up proceedings, to take physical possession of the Silvasa property, put up the same for sale under the provisions of the SARFAESI Act and the Security Interest Enforcement Rules, 2002 (hereinafter referred to as the said Rules), appropriate the sale proceeds against its dues and transmit the excess amount, if any. The applicant has further submitted to abide by the provisions of Section 529 and Section 529(a) of the 1956 Act and also undertook to deposit the surplus proceeds, if any, after adjusting its dues to the credit of the said company (in liquidation) with the Official Liquidator. 10. The Official Liquidator has filed his opposition and stated that it has taken symbolic possession of the Silvasa property of the company (in liquidation) on 31st August, 2017 as pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sale proceeds realized in therefrom accordance with the provisions of 1956 Act. 14. The judgment reported in (2005)8 SCC 190 being the pivot of the submission of the applicant bank has been considered in a more recent judgment and that too in the context of SARFAESI Act being reported in (2016)4 SCC 47. The later judgment becomes more relevant as the applicant bank intends to pursue the remedies available to it under the SARFAESI Act. It has been held in the said judgment after considering of the provisions of the SARFAESI Act that there is no embargo on a secured creditor to sell the secured assets of the company (in liquidation) but with a caveat that the official liquidator has to be associated whenever required. The official liquidator as appears from the said judgment steps into the shoes of the borrower that is the company (in liquidation) and as such the official liquidator has to be served with notices prior to any action being taken against the secured assets being the assets of the company (in liquidation). Under provisions of Section 13(2) and Section 13(4) of the SARFAESI Act the borrower is to be given notice similarly the official liquidator has to be notified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5) SCC 610 and 2014(5) SCC 660 for the proposition of issuance of notice under the said rules prior to sale. 16. In the instant case it appears that the applicant bank as a member of the consortium as also the official liquidator is in symbolic possession of the Silvasa property of the company (in liquidation). The official liquidator is also required to take possession of the other properties of the company (in liquidation) if not already taken in terms of the winding up order. Since the applicant bank claims that an equitable mortgage in respect of the Silvasa property has been solely created in favour of the applicant Bank, the official liquidator upon being satisfied to that effect after having scrutinized the same, will allow the applicant bank to exercise its right to sell the same as laid down in the judgment reported in (2016)4 SCC 47. It will be also beneficial if the Silvasa property is sold by the applicant bank. The applicant bank would be in as more favourable position to sale and obtain best price having branches all over India including at a place that may be very near to the Silvasa property. The official liquidator on the other hand has to operate from his offic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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