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TMI Blog2007 (6) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... C. A. No. 214 of 2007. 3. The brief facts are as under : The applicant-company filed C.P. No. 190 of 2006 seeking the voluntary winding up under sections 433( a ) and 439 of the Companies Act, 1956. The respondent-bank who is the secured creditor of the applicant-company initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter called the "SARFAESI Act"), and the respondent took possession of the immovable properties of the company which consists of the land and factory including the plant and machinery vide possession notice dated 31-1-2006. The respondent-bank is now ready to sell the above mentioned property by public auction on 9-2-2007, at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement of Security Interest Act is a special enactment. Further, it was stated in the counter that the auction was already conducted, the successful bidder has also deposited 25 per cent of the bid amount. 6. Heard learned counsel for the applicant and Mr. A.L. Somayaji, learned senior counsel for the respondent-bank. I have also perused the documents and the judgments referred to by them in support of their submissions. 7. Learned counsel for the applicant submitted that the applicant-company can very well maintain this application before this company court and the jurisdiction of the company court under the Companies Act which is also a special enactment is not ousted. He further submitted that in view of the valuation arrived at b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a wrong forum. Learned senior counsel relied on the following decisions in support of his submissions : (1) ICICI Bank Ltd. v. SIDCO Leathers Ltd. [2006] 131 Comp. Cas. 451 1 (SC); (2) Raghunath Rai Bareja v. Punjab National Bank [2007] 135 Comp. Cas. 163 2 (SC) and (3) Transcore v. Union of India [2007] 135 Comp. Cas. 1 3 (SC). 9. I have considered the rival submissions carefully with regard to facts and citations. 10. First let me consider the maintainability of the application before this court as objected to by learned senior counsel for the respondent-bank. 11. It is not in dispute and in fact is admitted by the petitioner-company that the respondent-bank is a secured creditor and by possession notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by this Act to determine and no injunction shall be granted by any court in respect of any action taken or to be taken pursuant to the power conferred by this Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act or under the Debts Recovery Tribunal Act. Under section 35 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act shall have the effect notwithstanding anything inconsistent therewith contained in any other law for the time being in fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e hon ble judges of the Bench further observed that when there is a conflict between law and equity, it is the law which has to prevail in accordance with the Latin maxim, "dura lex sed lex", which means, "the law is hard, but it is the law". 17. In Transcore s case ( supra ), the Hon ble Supreme Court held that section 35 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act gives an overriding effect to that Act with all other laws and if such other laws are inconsistent with the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act. The Supreme Court further observed that the very object of section 13 of the Securitisation and Reconstruction ..... X X X X Extracts X X X X X X X X Extracts X X X X
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