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TMI Blog2011 (3) TMI 1458X X X X Extracts X X X X X X X X Extracts X X X X ..... is application by Mr. Tulzapurkar, learned Senior Counsel appearing for the original petitioner and he questions the locus of the applicant, who is a third party and contended that the sale is not conducted by virtue of any order or proceedings under the Companies Act, 1956, bearing in mind the broad sweep of the arguments and the parties agreeing that all contentions including on merits of the application be dealt with, I am of the opinion that it is not necessary to give any ruling on the preliminary objection. Thus, the question whether the present proceedings are maintainable or not and this Court has jurisdiction as a Company Court to set aside a sale of secured assets by secured creditor under the Securitisation Act, 2002 are left open. I am proceeding in this case on the above agreed basis. 3. The applicant here is group company of the Uniworth Group and is also shareholder and contributory of the Company in Liquidation i.e., Uniworth Apparels Ltd. The present application is filed by the applicant to protect interest of all shareholders, unsecured creditors and workmen of the company viz., Uniworth Apparels Ltd. The present petition was originally filed by ICICI Ltd., which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition for publication of the advertisement by respondent No. 2. 6. It is contended that being aware of the appointment of the provisional liquidator, Assets Reconstruction Company (India) Ltd. (for short ARCIL) has fraudulently and illegally purported to sell and/or dispose of the secured assets of the company in favour of respondent No. 3, purportedly pursuant to a certificate of sale dated 20-4-2010 for a sum of Rs. 14 crores. The sale is conducted by private treaty at a gross under valuation. The endorsement by the Collector of Stamps (Thane) Civil, shows the market value has been assessed at Rs. 29 crores and odd and, therefore, the entire sale is challenged as fraudulent and illegal. It is submitted that the assets of the company were in the custody and/or deemed to be in the custody of Official Liquidator who is appointed as provisional liquidator and thus custodia legis. The sale should not have been conducted or carried out without consent of respondent No. 1 and in any event without informing/involving or associating respondent No. 1 in order to ensure that proper price was fetched for the sale of assets of the company. Once the order appointing provisional liquidator was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record as petitioner on 26-11-2009. This was done to enable it to effect sale of the property in favour of respondent No. 3. That sale is effected on 12-4-2010 for Rs. 14 crores. However, the sale is by private treaty and of a property which is worth about Rs. 28 crores. The sale is, therefore, obviously fraudulent and bad in law. Mr. Samdani submits that an order of winding up of the respondent company has been made on 14-1-2011. That order by virtue of the provisions contained in section 441 of the Companies Act, 1956 relates back to the date of presentation of the company petition viz., 23-5-2000. Once the doctrine and principle of relation back applies, then, custody and control of the assets and properties of the company in liquidation is with the Court. A secured creditor stands outside the winding up proceedings and effects the sale of the property of a company in liquidation but without informing the liquidator or seeking any approval and consent from the company Court, then, the sale is void under the Companies Act, 1956. Leave of Company Court in such cases is condition precedent. The applicant is a shareholder and contributory and, therefore, he is entitled to initiate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot affect the sale conducted prior thereto. The deeming fiction under section 441 will not come into play. In any event, it has limited operation. It is submitted that the date of sale is 12-4-2010 on which date there was no order of winding up. Therefore, in any event, the sale is not bad in law. Hence, there is no question of any doctrine of relation back applying in this case. He submits that the argument of Mr. Samdani overlooks the Securitisation Act and section 13 thereof. Mr. Tulzapurkar submits that section 529A of the Companies Act and other provisions thereof relied upon, come into play after the order of winding up. Therefore, the Legislature was aware of this position and in the Securitisation Act, it makes a reference thereto and in this behalf, he relied upon section 13(9) of the Securitisation Act. Mr. Tulzapurkar submits that the consideration of Rs. 14 crores received from the sale is with the original petitioner ARCIL. It is not as if the ARCIL will not abide by section 529A but merely because the priorities under that provisions have to be determined, does not mean that the sale is bad in law. That aspect is distinct from the legality and validity of the sale its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is "cases in which the company may be wound up by the Court". Section 433 sets out the circumstances in which a company may be wound up by the Court. Section 434 creates a deeming fiction with regard to inability of the company to pay its debts. Then comes section 439 which is relevant and it is under the sub-heading "petitions for winding up". Section 441 appears under a sub-heading "Commencement of Winding Up" and reads thus :- "441. (1) Where, before the presentation of a petition for the winding up of a company by the Tribunal, a resolution has been passed by the company for voluntary winding up, the winding up of the company shall be deemed to have commenced at the time of the passing of the resolution, and unless the Tribunal, on proof of fraud or mistake, thinks fit to direct otherwise, all proceedings taken in the voluntary winding up shall be deemed to have been validly taken." (2) In any other case, the winding up of a company by the Tribunal shall be deemed to commence at the time of the presentation of the petition for the winding up." 17. A bare perusal of the same would indicate that the first part i.e., sub-section (1) deals with commencement of voluntary winding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s relating to Official Liquidator and the only section that is relied upon is section 456 which deals with custody of company's property and section 457 enumerating powers of liquidator. There is discretion given to liquidator vide section 458 and there are ancillary provisions. In the light of the wide powers that are conferred on the liquidator, as a corollary, the liquidator can, depending upon other conditions take such decisions, as he has been empowered to by the afore-referred provisions. 19. Chapter V is entitled "provisions applicable to every mode of winding up". Sections 528, 529, 529A are material and since they are referred to frequently by both Counsel, it would be appropriate to reproduce them. "528. Debts of all descriptions to be admitted to proof.-In every winding up (subject, in the case of insolvent companies, to the application in accordance with the provisions of this Act of the law of insolvency), all debts payable on a contingency, and all claims against the company, present or future, certain or contingent, ascertained or sounding only in damages, shall be admissible to proof against the company, a just estimate being made, so far as possible, of the valu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any, being workmen within the meaning of the Industrial Disputes Act, 1947 (14 of 1947); (b)"Workmen's dues", in relation to a company, means the aggregate of the following sums due from the company to its workmen, viz., (i)all wages or salary including wages payable for time or piece work and salary earned wholly or in part by way of commission of any workman, in respect of services rendered to the company and any compensation payable to any workman under any of the provisions of the Industrial Disputes Act, 1947 (14 of 1947) (ii)all accrued holiday remuneration becoming payable to pay workman, or in the case of his death to any other person in his right, on the termination of his employment before, or by the effect of, the winding up order or resolution; (iii)unless the company is being wound up voluntarily merely for the purposes of reconstruction or of amalgamation with another company, or unless the company has, at the commencement of the winding up, under such a contract with insurers as is mentioned in section 14 of the Workmen's Compensation Act, 1923 (8 of 1923) rights capable of being transferred to and vested in the workman, all amounts due in respect of any compensa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticipate in the product of their labour and effort. It is accordingly proposed to amend sections 529 and 530 of the Companies Act and also to incorporate a new section in the Act viz., 529A (vide clauses 4, 5 and 6 of the Bill)." 21. Therefore, when proof and ranking of claims is the main sub-heading and all provisions falling thereunder are inserted on account of the effect of an order of winding up of a company, then all the more the construction which will have to be placed on them must be such so as to advance the object and purpose of their introduction and insertion. 22. This aspect becomes absolutely clear if one refers to the section which falls under another sub-heading "effect of winding up on antecedent and other transactions". Section 531 onwards falling in the same and particularly sections 536 and 537 clarify that transactions etc., after commencement of winding up can be avoided. Equally, certain attachments, executions etc., can be avoided provided the pre-conditions therefor are satisfied. 23. Such being the scheme of the Companies Act and particularly in dealing with a winding up of a company, incorporated and registered thereunder, the next enactment that has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Institutions. Therein, section 5 appears which reads as under : 5. Acquisition of rights or interest in Financial assets.-(1) Notwithstanding anything contained in any agreement or any other law for the time being in force, any securitisation company or reconstruction company may acquire financial assets of any bank or financial institution : (a)by issuing a debenture or bond or any other security in the nature of debenture, for consideration agreed upon between such company and the bank or financial institution, incorporating herein such terms and conditions as may be agreed upon between them; or (b)by entering into an agreement with such bank or financial institution for the transfer of such financial assets to such company on such terms and conditions as may be agreed upon between them. (2) If the bank or financial institution is a lender in relation to any financial assets acquired under sub-section (1) by the securitisation company or the reconstruction company, such securitisation company or reconstruction company shall, on such acquisition, be deemed to be the lender and all the rights of such bank or financial institution shall vest in such company in relation to su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reed upon between the parties; (b)act as a manager referred to in clause (c) of sub-section (4) of section 13 on such fee as may be mutually agreed upon between the parties; (c)act as receiver if appointed by any Court or Tribunal; Provided that no securitisation company or reconstruction company shall act as a manager if acting as such gives rise to any pecuniary liability. (2) Save as otherwise provided in sub-section (1), no securitisation company or reconstruction company which has been granted a certificate of registration under sub-section (4) of section 3, shall commence or carry on, without prior approval of the Reserve Bank, any business other than that of securitisation or asset reconstruction: Provided that a securitisation company or reconstruction company which is carrying on, on or before the commencement of this Act, any business other than the business of securitisation or asset reconstruction or business referred to in sub-section (1), shall cease to carry on any such business within one year from the date of commencement of this Act. Explanation.-For the purposes of this section, "securitisation company" or "reconstruction company" does not include its "subsi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mes and economic situation whereafter yet another Expert Committee was constituted then alone the impugned law was enacted. Liquidity of finances and flow of money is essential for any healthy and growth oriented economy. But certainly, what must be kept in mind is that the law should not be in derogation of the rights which are guaranteed to the people under the Constitution. The procedure should also be fair, reasonable and valid, though it may vary looking to the different situations needed to be tackled and object sought to be achieved. 35. As referred to above, the Narsimham Committee was constituted in 1991 relating to the Financial System prevailing in the country. It considered wide ranging issues relevant to the economy, banking and financing etc. Under Chapter V of the Report under the heading "Capital Adequacy", "Accounting Policies and other Related Matters" it was opined that a proper system of income recognition and provisioning is fundamental to the preservation of the strength and stability of banking system. It was also observed that the assets are required to be classified, it also takes note of the fact that the Reserve Bank of India had classified the advances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Committee also suggested some legislative measures to meet the situation. 66. On behalf of the petitioners one of the contentions which has been forcefully raised is that existing rights of private parties under a contract cannot be interfered with, more particularly putting one party to an advantageous position over the other. For example, in the present case, in a matter of private contract between the borrower and the financing bank or institution through impugned legislation rights of the borrowers have been curtailed and enforcement of secured assets has been provided for without intervention of the Court and above all depriving them the remedy available under the law approaching to the Civil Court. Such a law, it is submitted, is not envisaged in any civilised society governed by rule of law. As discussed earlier as well, it may be observed that though the transaction may have a character of a private contract yet the question of great importance behind such transactions as a whole having far reaching effect on the economy of the country cannot be ignored, purely restricting it to individual transactions more particularly when financing is through banks and financial i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Kerala MANU/SC/0041/1977:1977 (2) SCC 670, Fatehchand Himmatlal v. State of Maharashtra MANU/SC/0075/1961:1962 (1) SCR 852, Ramdhandas v. State of Punjab. 67. It is well known that in different States, Rent Control legislations were enacted providing safeguards to the sitting tenants as against the existing rights of the landlords, which before coming into force of such law were governed by contract between the private parties. Therefore, it is clear that it has always been held to be lawful, whenever it was necessary in the public interest to legislate irrespective of the fact that it may affect some individuals enjoying certain rights. In the present case we find that the unrealised dues of banking companies and financial institutions utilising public money for advances were mounting and it was considered imperative in view of recommendations of experts committees to have such law which may provide speedier remedy before any major fiscal set back occurs and for improvement of general financial flow of money necessary for the economy of the country that the impugned Act was enacted. Undoubtedly, such a legislation would be in the public interest and the individual inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... secured creditor may retain the sale proceeds of the secured assets after depositing the amount of such estimated dues with the liquidator : Provided also that in case the secured creditor deposits the estimated amount of workmen's dues, such creditor shall be liable to pay the balance of the workmen's dues or entitled to receive the excess amount, if any, deposited by the secured creditor with the liquidator : Provided also that the secured creditor shall furnish an undertaking to the liquidator to pay the balance of the workmen's dues, if any. Explanation.-For the purpose of this sub-section,- (a)"record date" means the date agreed upon by the secured creditors representing not less than three-fourth in value of the amount outstanding on such date; (b)"amount outstanding" shall include principal, interest and any other dues payable by the borrower to the secured creditor in respect of secured asset as per the books of account of the secured creditor." Then, there is a reference to the statement of object and reason of section 13(9) of the Bill which is as under :- "13(9) Sub-clause (9) of this section provides that in the case of financing of a financial asset by more tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -sections, if the assets belong to company in liquidation, then, the amount realised from the sale of such secured assets shall be distributed in accordance with the provisions of section 529A of the Companies Act, 1956. The second proviso thereto clarifies that in the case of company being wound up on or after the commencement of the Securitisation Act, the secured creditor of such a company who opts to realise his security instead of relinquishing it and proving its debt under the proviso to section 529(1) of the Companies Act may retain the sale proceeds on depositing the workmen's dues with the liquidator. The third proviso provides that the liquidator must intimate the secured creditor the workmen dues in accordance with section 529A of the Act and in case the claims cannot be ascertained by him, the Liquidator can intimate estimated amount of such dues and in such case, the secured creditor may retain the sale proceeds of the secured assets after depositing the amount of such estimated dues and the next proviso contemplates that the creditor shall be liable to pay balance of the workmen's dues or entitle to receive excess amount, if any, deposited by the secured creditor with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisional Liquidator and, thereafter, on 23-4-2004, the Company was finally wound up. It is also noted that the respondent before the Division Bench - State Bank of India, thereafter issued a notice on 12-10-2004 for the sale of property as in its view the proceedings under the Securitisation Act were already initiated by it. It is in such circumstances that the liquidator filed the application to recall the order of the learned Single Judge granting permission to proceed under Securitisation Act and the applications of the Bank were allowed but the Liquidators request was turned down. That is how the appeal was filed. 32. The Court noted the arguments of both sides in paras 4 and 5 held thus :- "4. At the hearing of this appeal, on behalf of the appellant, their learned Counsel has principally submitted as under :- (i)That the provisions of the Securitisation Act will prevail as long as the company is in existence. Even if Official Liquidator is appointed as provisional liquidator, the Securitisation Act will prevail till the company is ordered to be wound up. After the winding up order it is not open to a secured creditor to proceed under the provisions of the Securitisatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Company Court under section 442 read with section 537 or under section 446 of the Companies Act, 1956. In respect of the monies realised under RDB Act, the questions of priorities amongst banks and financial institutions and other creditors can be decided only by the Tribunal under the RDB Act in accordance with section 19(19) read with section 529A of the Companies Act and in no other manner. The provisions of the RDB Act, 1993 are to that extent inconsistent with the provisions of the Companies Act, 1956. This position holds during the pendency of winding up proceedings against the debtor company and also after the winding up order is passed. No leave of the Company Court is necessary for initiating or continuing the proceeding under RDB Act, 1993. Point Nos. 2 and 3 were accordingly decided in favour of the appellant and against the respondent. Considering the above, insofar as the R.D.B. Act is concerned, it has been held that the Tribunal constituted under the RDB Act, 1993, would have exclusive jurisdiction even after winding up order is passed. The only question is whether the position is the same under the provisions of the Securitisation Act. We may consider some prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of this Act or the rules made thereunder shall be in addition to and not in derogation of the Industrial Finance Corporation Act, 1948 and various acts as set out therein. It would thus be clear that, the provisions of Securitisation Act are in addition to and not in derogation amongst others of the R.D.B. Act. We may again refer to the case of Allahabad Bank (supra). After considering the issue of leave and control by the company Court, the Apex Court held on the issue of adjudication, execution and working out priorities that the special provisions made under the R.D.B. Act would prevail. Then considering the issue of Special Law Versus General Law, the Apex Court was pleased to hold that the provisions of the R.D.B. Act, 1993 to the above extent are inconsistent with the provisions of the Companies Act, 1956 and came to the conclusion that the leave of the company Court was not required before winding up or after winding up. On behalf of the appellant, learned Counsel drew our attention to the observations of the Apex Court in State Bank of Hyderabad v. Pennar Paterson Ltd. [2003] 114 Comp. Cas. 66, where the Apex Court has observed that Allahabad Bank may have to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor, to advance a sum of Rs. 25,000 each to meet the expenses of sale on a condition that the amount would be reimbursed to them on priority basis from the sale proceeds. Although it was stated that the intimation of this application was conveyed to the appellant before the Supreme Court by the liquidator, they had no notice of the proceedings in liquidation and they indicated that they propose to pursue the remedies available to them under section 29 of the State Financial Corporations Act, 1951. Therefore, they opposed the report of the Liquidator and sought permission to realise their security and apportion the net sale proceeds between them and another secured creditors and they undertook to pay over the dues of the workmen on the same being adjudicated by the liquidator in accordance with section 529A of the Companies Act. That application was rejected by the Company Court and it took the view that even if the appellant stood outside the winding up they had to exercise the right in accordance with the right of the workmen represented by the liquidator. However, the Court permitted the RSFC to invite offers for sale of properties and directed it to finalise the same in consulta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred to above. In this situation, we find no reason to interfere with the decision of the High Court. We clarify that there is no inconsistency between the decisions in Allahabad Bank v. Canara Bank (supra) and in International Coach Builders Ltd. v. Karnataka State Financial Corpn. (supra) in respect of the applicability of sections 529 and 529A of the Companies Act in the matter of distribution among the creditors. The right to sell under the SFC Act or under the Recovery of Debts Act by a creditor coming within those Acts and standing outside the winding up, is different from the distribution of the proceeds of the sale of the security and the distribution in a case where the debtor is a company in the process of being wound up, can only be in terms of section 529A read with section 529 of the Companies Act. After all, the liquidator represents the entire body of creditors and also holds a right on behalf of the workers to have a distribution pari passu with the secured creditors and the duty for further distribution of the proceeds on the basis of the preferences contained in section 530 of the Companies Act under the directions of the company court. In other words, the distr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consistent with the relevant provisions of the Companies Act regarding distribution of the assets of the company-in-liquidation." [Emphasis supplied] 36. I am unable to accede to the submissions of Mr. Samdani that the judgment of the Division Bench of this Court is not binding on me because it did not notice the Supreme Court decision in the field. He submits that the Division Bench did not have an occasion to notice the Supreme Court decision in R.S.F.C.'s case (supra) because it was rendered on 5-10-2005 whereas the Division Bench judgment was delivered on 8-8-2005. Further, he submits that the Division Bench did not notice section 37 of the Securitisation Act. He submits that section 37 of the Securitisation Act specifically refers to Companies Act and, therefore, the over-riding effect given to the Securitisation Act is not absolute. He submits that in contra-distinction to the language of section 34 of the Securitisation Act, when the Companies Act is not over-ridden, then all the more, the supervision of the sale by the Company Court is necessarily read into the Securitisation Act. He submits that on a winding up order being made, the custody and control of the assets and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a given case. So far as constitutional matters are concerned, it is a practice of the Court not to make any pronouncement on points not directly raised for its decision. The decision in a judgment of the Supreme Court cannot be assailed on the ground that certain aspects were not considered or the relevant provisions were not brought to the notice of the Court (See AIR 1970 SC 1002 and AIR 1973 SC 794). When Supreme Court decides a principle it would be the duty of the High Court or a subordinate Court to follow the decision of the Supreme Court. A judgment of the High Court which refuses to follow the decision and directions of the Supreme Court or seeks to revive a decision of the High Court which had been set aside by the Supreme Court is a nullity. [See 1984 (2) SCC 402 and 1984 (2) SCC 324]." 38. Secondly, assuming that the Division Bench had the benefit of the Supreme Court judgment in RSFC's case (supra) even then, with respect, in my view its conclusion in law is unassailable. 39. In later decisions of the Supreme Court the point has been succinctly explained. The provisions such as section 529A of the Companies Act are attracted when a liquidator intervenes and not othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide the question as to whether having regard to the provisions contained in section 529A of the Companies Act those who stand outside the winding up proceedings will have to proceed with the proceedings initiated by them. Therein, the court was concerned with the interpretation of section 446 of the Companies Act, 1956 vis-a-vis the provisions of the RDB Act, namely, as to whether for instituting or continuing proceedings thereunder, permission of the Company Court was required to be obtained. Having regard to the finding that the RDB Act was a special statute enacted by the Parliament much after the Companies Act came into force, it was opined that no permission was required since the Debt Recovery Tribunal had exclusive jurisdiction with respect to matters concerning recovery of dues by banks and financial institutions.' 33. This legal position was considered by a Bench of this Court in Rajasthan State Financial Corpn. v. Official Liquidator [(2005) 8 SCC 190] wherein one of us (Balasubramanyan, J.) was a member. It was stated : ** ** ** 34. Allahabad Bank (supra), therefore, is not an authority for the proposition that in terms of section 529A of the Companies Act the disti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over the claim of the second charge holder and in a given case where the debts due to both, the first charge holder and the second charge holder, are to be realized from the property belonging to the mortgagor, the first charge holder will have to be repaid first. There is no dispute as regards the said legal position. 43. Such a valuable right, having regard to the legal position as obtaining in common law as also under the provisions of the Transfer of Property Act, must be deemed to have been known to the Parliament. Thus, while enacting the Companies Act, the Parliament cannot be held to have intended to deprive the first charge holder of the said right. Such a valuable right, therefore, must be held to have been kept preserved. [See Workmen of Firestone Tyre and Rubber Co. of India (P.) Ltd. v. Management [1973] 1 SCC 813] 47. The provisions of the Companies Act may be a special statute but if the special statute does not contain any specific provision dealing with the contractual and other statutory rights between different kinds of the secured creditors, the specific provisions contained in the general statute shall prevail." [Emphasis supplied] 41. In the earlier paragr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at when a provisional liquidator was appointed, the High Court instead of exercising its writ jurisdiction referred the matter to the Company Judge. It was the Company Judge, therefore, who proceeded in the matter. The Company Judge could exercise its jurisdiction only in terms of the Companies Act and not in terms of section 29 of the 1951 Act. If it did not have the power under the 1951 Act, any decision purported to have been taken by it would be a nullity. SICOM indisputably has a statutory power but it could waive the same. It preferred the conduct of the auction at the hands of the Company Judge in stead and place of carrying on the same by itself. It submitted itself to the jurisdiction of the Company Judge. Not only it took part in the proceedings without any demur whatsoever, it actively participated therein. It is only at its instance that the bid was held. The other bidders were also brought in. It is, therefore, not a case where the learned Company Judge had no jurisdiction to exercise supervision of sale of the assets of the appellant on behalf of SICOM in terms of the provisions of section 29 of the 1951 Act or otherwise. Respondents even never insisted to get the qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the Company Court and, therefore, the Supreme Court emphasised the role of the liquidator that his powers are the same though his appointment is provisional. However, as far as the legal position is concerned, this is what is observed by the Supreme Court in para 47:- "47. In NGEF Ltd. v. Chandra Developers (P.) Ltd. [2005] 8 SCC 219, this Court opined: "The Company Judge moreover will have to bear in mind the provisions contained in section 529A of the Companies Act in terms whereof the dues of the workman and the debts due to the secured creditors to the extent such debts rank in clause (c) of the proviso appended to sub-section (1) of section 529 pari passu therewith and shall have a priority over all other debts." In A.P. State Financial Corporation v. Official Liquidator [2000] 7 SCC 291, this Court held : 'Under the proviso to sub-section (1) of section 529, the liquidator shall be entitled to represent the workmen and force the above pari passu charge. Therefore, the Company Court was fully justified in imposing above conditions to enable the Official Liquidator to discharge his function properly under supervision of the Company Court as the new section 529A of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mphasis supplied] 43. Thus, the emphasis of the Arguments before me is the reliance on the decision of the Supreme Court in the case of Allahabad Bank (supra), which is partially over-ruled. (see para 25 of the Judgment of the Hon'ble Supreme Court in Andhra Bank v. Official Liquidator [2005] 59 SCL 239. It is not possible to agree with Mr. Samdani that these judgments were rendered, when secured creditors stayed out of winding up. The judgments hold that rights of the secured creditors under General Laws so also Statutes dealing with specific rights of secured creditors remain unaffected even after section 529A of the Companies Act, 1956 came to be enacted. The distinction as made by Mr. Samdani, therefore, has no basis in law. Further, his faint attempt to suggest that M/s. ARCIL has submitted to the jurisdiction of the Company Court by substituting itself as a petitioner in the winding up petition also is devoid of any substance. By such substitution alone without anything more, M/s. ARCIL has not waived its rights under the Securitisation Act to sell the secured assets and it was entitled to do so in law. Therefore, the sale is not vitiated on that count. Of course, ARCIL is b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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