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TMI Blog2009 (3) TMI 565X X X X Extracts X X X X X X X X Extracts X X X X ..... d to permit the reconstruction company to take further proceedings under the SARFAESI Act. The petitioner would be permitted to move this Court for appropriate directions if the petition for winding up is considered favourably. The ultimate directions shall follow on what is held on the outcome of petition for winding up. In the meanwhile, no appropriation or disbursal of the sale proceeds shall be undertaken by the asset reconstruction company without leave of this Court. - C.A. NOS. 875 OF 2008, 95 AND 151 OF 2009 IN C.P. NO. 96 OF 2008 - - - Dated:- 26-3-2009 - K. KANNAN, J. Anand Chhibbar, Ranjit Chawla, Girish Agnihotri, Chetan Mittal, Vijay Pal, Ashok Aggarwal and Ms. Radhika Suri for the Parties. JUDGMENT 1. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... immediate effect till the petitioners sought permission from the BIFR to proceed with the matter. 2. This application is contested by the petitioner pointing out the fact that the respondent-company had been taken over by M/s. Dhir Dhir Asset Reconstruction and Securitisation Co. Ltd., under section 13(2) and (4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ( the SARFAESI Act ) on 28-11-2008 (possession notice as annexure R1). The contention of learned counsel for the petitioner is that after invoking the provisions of the SARFAESI Act, the proceedings before the BIFR have abated and, hence, the respondent-company cannot obtain any relief under the SICA. The petitioner ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed by the reconstruction company on sections 35 and 37 of the SARFAESI Act to urge that the Act would have overriding effect to any other provisions of law contained in any other statute and making reference to section 37 of the Act that states that provisions of the SARFAESI Act shall be in addition to, and not in derogation of the Companies Act, it is urged on behalf of the reconstruction company that section 37 runs subservient to section 35 of the SARFAESI Act, it shall be taken that the SARFAESI Act shall override the inconsistent provisions of the Companies Act. 4. Having regard to the fact that the contentions of the petitioner had been already disclosed in the petition for winding up and the conduct of the reconstruction co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2009] 152 Comp. Cas. 215 (Punj. Har.), and other connected matters. I have held in that judgment that there is no inconsistency between the provisions of the SARFAESI Act and the Companies Act and it shall be the endeavour to administer the provisions and allow for the operation of provisions in the respective fields. I adopt the same reasoning here as well and the only modification in the order that I would make in the line of reasoning to conform to the facts of the case are that the operation of section 446 of the Companies Act which talks about the procedure when a winding up order has been made or when the Official Liquidator has been appointed as the provisional Liquidator, has not yet arrived and the reference to a bar against inst ..... X X X X Extracts X X X X X X X X Extracts X X X X
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