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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 ..... guarantee to a loan availed of by one M/s. R.B.S. Commtrade Pvt. Ltd. from the appellant Bank. Mr. Soumit Jena accordingly executed an Agreement of Guarantee on 7th May 2013. On 14th June 2013, Mr. Jena deposited the title deeds in respect of the mortgaged property with the appellant Bank. Since the borrower of the appellant Bank defaulted in repayment, the account was declared as non-performing asset. The appellant called upon the insolvent to pay the outstanding balances. Appellant also revoked the facilities granted to the borrower and invoked personal guarantee. In Insolvency Petition No.2/2016, Mr. Jena was held to be insolvent. The Official Assignee thereafter filed reports in said insolvency proceedings. 3. The appellant filed a Not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2015]. 5. We have heard the learned Counsel for the parties. It is recorded in the order passed by the learned Single Judge that respondent-insolvent was not present when the order was passed and that he is reported as absconding. 6. Mr. Sen, the learned Senior Counsel appearing for the Official Assignee submitted that there cannot be dispute about the legal position that secured creditor is entitled to enforce his secured interest by invoking provisions under the SARFAESI Act by opting out of Insolvency proceedings, but such secured creditor must involve the Official Assignee in all such steps. He also submitted that appellant will have to withdraw its claim lodged before Official Assignee. 7. The learned Single Judge in the impugned or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose. They read thus:- "9. Proof where security realized- If a secured creditor realizes his security, he may prove for the balance due to him, after deducting the net amount realized. 10. Proof where security is surrendered- If a secured creditor surrenders his security to the official assignee for the general benefit of the creditors, he may prove for his whole debt. 11. Proof in other cases- If a secured creditor does not either realize or surrender his security, he shall, before ranking for dividend, state in his proof the particulars of his security, the date when it was given and the value at which he assesses it, and shall be entitled to receive a dividend only in respect of the balance due to him after deducting the value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive enactments. The Division Bench held that the power of secured creditor does not get affected in any manner by the provisions of Act of 1909. In the case of Pegasus Assets Reconstruction (P.) Ltd. (supra) the Supreme Court framed a question for considering as to whether a Company Court, directly or through an Official Liquidator exercise control in respect of sale of a secured asset by a secured creditor in exercise of powers available to such creditor under the SARFAESI Act. The Supreme Court was considering divergent views taken by the Punjab and Haryana High Court and High Court of Delhi. The Supreme Court upheld the grievance of the appellant before it that it was wrongfully denied its right to stay outside the winding up in view of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gnee to handover possession of the secured assets and from there the Appellant would take approximately 5 months to complete the sale process under SARFAESI Act. In the event, the auction fails for non-receipt of any bid above reserve price, the Appellant will repeat the same process for conducting further auctions." By filing an affidavit, the appellant has thus submitted that it will require approximately 10 days for initiating sale process once this Court directs the Official Assignee to handover possession of the secured assets and from there the appellant would take approximately 5 months to complete the sale process under the SARFAESI Act. Ms.Nanghare submitted that the Official Assignee would be informed about steps taken by the app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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