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TMI Blog2019 (5) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... eal allowed. - APPEAL (L) NO. 570 OF 2018 NOTICE OF MOTION NOS. 37 & 1365 OF 2018 INPT NO. 2 OF 2016 - - - Dated:- 25-2-2019 - MR NARESH H. PATIL, CJ. AND N.M. JAMDAR, J. For The Appearing Parties : Ms. Savita Nanghare, Ms. Deepali Jadhav, J.P. Sen, Sr. Adv., Ms. Kavita A. Shah, E.B. Shivkumar and Ms. Sandhya Pagedar JUDGMENT Naresh H. Patil, CJ. The appeal is directed against the order passed by the learned Single Judge of this Court in Official Assignee's Report No.4 of 2018 in Insolvency Petition No.2 of 2016 dated 4th December, 2018. 2. One Mr. Soumit Ranjan Jena stood guarantee to a loan availed of by one M/s. R.B.S. Commtrade Pvt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the the SARFAESI Act, the appellant is entitled to enforce the security and proceed to take steps to sell the property mortgaged for recovering the dues of the Bank. The appellant thus is entitled to opt out of the insolvency proceedings for enforcing its rights under the SARFAESI Act and accordingly the appellant had intimated the official assignee which request was turned down. In support of the submissions the Counsel has placed reliance on the judgment of the Apex Court in the case of Pegasus Assets Reconstruction (P.) Ltd. v. Haryana Concast Ltd. [2016] 133 SCL 491 and decision of the Division Bench of Madras High Court in the case of Indian Bank v. Official Assignee [OSA Nos. 130,131 and 172 of 2015]. 5. We have he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsolvency Act, 1909 (for brevity 'the Act of 1909') was enacted almost 110 years ago. The Act was brought in force to amend the law regarding governing insolvencies in the Presidency towns. The Act contemplates constitution of the Insolvency Court. It lays down procedure of declaration of insolvency adjudication, administration of property of the insolvents, appointment of Official Assignee and it's duties. 9. Section 48 of the Act of 1909 refers to right of proof by secured and other creditors to be as per the rules in the Second Schedule. The Second Schedule deals with two parts; (i) proofs in ordinary cases and (ii) proof by secured creditors. Rules 9, 10 and 11 in the second part deal with proof by secured cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lvent and Guarantor. The appellant had also taken symbolic possession on 8th December 2014 under Section 13(4) of the SARFAESI Act. In the Notice of Motion taken out before the learned Judge, the appellant had categorically stated that it is choosing to stand outside insolvency proceedings. Therefore, the intention of the appellant to take recourse to the provisions of SARFAESI Act as available to the appellant and to stand outside the insolvency proceedings was manifest and clear. 11. An issue arose regarding the role of secured creditor in respect of insolvency proceedings in the case of Indian Bank (supra)before the Division Bench of Madras High Court. The Division Bench held that the role of the Official Liquidator under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble principle, the appellant cannot be permitted to stand outside the insolvency proceedings and realise its dues and it must deposit the title deeds with Official Assignee, cannot be sustained. 13. When we heard the appeal on the earlier date, Mr.Sen had expressed an apprehension that the appellant may not take adequate steps at all in respect of the assets. He had submitted that, in law the appellant may be entitled to stand outside insolvency proceedings, but in the facts of this case there are some apprehensions. 14. In this context the appellant had taken time to file an additional affidavit. Ms. Nanghare has placed an affidavit of Asst. General Manager-Durgamadhab Misra. Paragraph-14 of the said affidavit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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