9911796707
TMI Blog2009 (4) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... been preferred by reconstruction company namely Dhir and Dhir Asset Reconstruction and Securitization Company Ltd. which was impleaded as party respondent No. 2 in a winding up petition filed by M/s. Air Liquide North India Private Limited-respondent No. 1-petitioner. In fact, Respondent No. 1-petitioner had filed an application under section 22(1) of the Sick Industries (Special Provisions) Act, 1985 (for brevity 'the SICA Act') seeking stay of proceedings on the ground that reference under section 15(1) of the SICA Act was being considered in case No. 299 of 2004 and respondent No. 2 the Haryana Steel and Alloys had been declared sick. The application was rejected on the simple ground that the Appellant-Reconstruction Company has already ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been made or when the Official Liquidator has been appointed as Provisional Liquidator, has not yet arrived and the reference to a bar against institution of suit and other proceedings would not operate for the present. I reject the contention placed by the counsel for the petitioner that since the application has been filed before the purported act of reconstruction company to take over the assets under section 13(4). It shall be construed, with reference to section 441 (2) of the Companies Act, that the winding up of the company the Tribunal (Court) shall be deemed to commence at the time of presentation of the petition for winding up. In my view, if the order of winding up is made by virtue of section 441(2), it would relate back to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in accordance with section 13(7). 5. Mr. Ashok Aggarwal, learned Senior Counsel for the Appellant-Recon-struction Company has argued that putting of such fetters on the func-tioning of Reconstruction Company would defeat the very purpose of SARFAESI Act and such fetters are impermissible by keeping in view the nature and spirit of the SARFAESI Act. Mr. Aggarwal, learned Senior Counsel has vehemently submitted that a Reconstruction Company like the Appellant is a free bird and the Company Court completely looses its jurisdiction to control the functioning of a Reconstruction Company. Therefore, he has argued that the learned Company Judge committed grave error in law by putting various fetters requiring the Appellant Reconstruction Compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by asking the Appellant Reconstruction Company to refrain from appropriation or disbursal of the sale proceeds without leave of the Court. It is not a case where it could be said that the learned Company Judge had interfered with the functioning of the Reconstruction Company because as and when any funds are required to be spent as per the provisions of section 13(7) of the SARFAESI Act it could be done by the leave of the Court. The Appellant-Reconstruction Company has been granted liberty not only to take possession of the assets but to even proceed with the sale of those assets subject to a rider that no appropriation or disbursal of the sale proceeds is to be undertaken by the Appellant-Reconstruction Company without leave of the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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