9911796707
TMI Blog2003 (10) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the applicant-Banks and the applicant-Banks are, therefore, considered to be the secured creditors of the said Company. It is further stated that the applicant-Banks have initiated recovery proceedings against the said Company and others by Application being Original Application No. 137/2002 before the Debts Recovery Tribunal, Ahmedabad under the Provisions of Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as the Recovery of Debts Act). The said application is pending before the Debts Recovery Tribunal at Ahmedabad and in the said proceedings, the DRT passed an order on 12-4-2002 appointing the Court Commissioner to carry out Commissioner work/inventory work. Accordingly, the Court Commissioner visited the premises of the said Company and it was found by the Court Commissioner that the premises are in possession of Gujarat Industrial Investment Corporation Limited (GIIC) and there were five security men watching the said factory appointed by GIIC and the applicant-Banks. It is further stated that all the properties are in possession of GIIC including the plant and machineries and other movable assets. 3. It is further stated tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d office of Company and secured creditors. While taking inspection of the said Company, it was observed that the subject Company was having Registered Office and works at near G.I.D.C. Industrial Estate, Mahuva, Distt. Bhavnagar. The Official Liquidator has, therefore, deputed his representative on 21-2-2003 for taking possession of the assets of the said Company. At that time, it was found that the assets and properties are under the possession of GIIC and they deputed their security guards for safeguarding the properties of the said Company. In pursuant to the order passed by this Court, the representative of the Official Liquidator has done only the inventory work of the assets and properties of the Company and did not take possession of the said Company. 7. It is further stated in the said report that in case of a Company where winding-up order has been made or Provisional Liquidator has been appointed, the assets are in the custody of the Official Liquidator as provided under section 456(1) of the Companies Act, 1956 and the said assets are deemed to be in the custody of the Company Court from the date of winding-up order as per the Provisions contained in section 456(2) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rities, will be distributed in accordance with the Provisions of section 529-A of the Companies Act, 1956 and, therefore, the Official Liquidator should not have any grievance against the same. It is further stated that the permission as prayed for by the applicant-Banks in the application should be granted looking to the Provisions of the Act as well as considering the interest of all Secured Creditors. It is also stated that section 36 of the Securitisation Act provides for overriding provisions of other laws. Section 13 of the Act provides for realisation of the securities of the Secured Creditors without intervention of the Court by the Creditors in accordance with the Provisions of the said Act. It is further stated that the remedies available to the applicant-Bank under section 13 of the Securitisation Act are faster and quicker remedies keeping interest of all the parties intact. It is also stated that the Official Liquidator is overwhelmed and over-burdened with several companies already went into liquidation and the properties of the companies in liquidation have not yet been sold nor the amount has been realised from the securities for number of years. It is, therefore, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Securitisation Act cannot be denied to the applicant-Banks simply because by virtue of the order passed by this Court on 24-12-2002, appointing the Official Liquidator as Provisional Liquidator of the Company. Looking to the scheme of the Securitisation Act, it is clear that the said Act has an overriding effect in view of the Provisions contained in section 36 of the said Act. The applicant-Banks being the Secured Creditors and after having complied with the Provisions of section 13(9) of the said Act, is empowered to initiate such proceedings. However, since the matter is pending before the Company Court, a prior permission of the Company Court under section 446 of the Act is required to be taken and when such an application is moved to this Court, there is no reason for this Court not to grant such permission. Reliance placed by the Official Liquidator on the decision of Andhra Pradesh High Court in the case of Pennar Paterson Ltd. v. State Bank of Hyderabad [2001] 106 Comp. Cas. 338, does not take the case of the Official Liquidator any further as in that case, the Court has held that the Commissioner appointed by the Debt Recovery Tribunal for taking inventory of asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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