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TMI Blog2020 (6) TMI 688X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany Appeal (AT) (Insolvency) No. 1408 of 2019 - - - Dated:- 20-2-2020 - A.I.S. Cheema And Anant Bijay Singh, Judicial Member, Kanthi Narahari, Technical Member For the Appellant : S.L. Gupta and Akanksha, Advs. For the Respondent : Ashok Juneja , Akash Srivastava, Ms. Akshita Rishi, Shekhar Gupta, Mohd. Shahbaz, Sibananda Bhanja and Atul Rohilla, Advs. ORDER 1. Heard learned Counsel for Appellant and the Respondents. The Appeal has been filed by the Appellant in view of admission of an Application under section 7 of Insolvency and Bankruptcy Code 2016, (in short IBC) which was filled by the Respondent No. 2 Punjab National Bank (Financial Creditor) against Gupta Marriage Hall Private Limited (Corporate Debtor). The Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... greement with the submissions advanced on behalf of respondent Kotak Mahindra Bank as well as Respondent 2 that there is no lacuna or ambiguity in the SARFAESI Act to warrant reading something more into it. For the purpose it has been enacted, it is a complete code and the earlier judgments rendered in the context of the SFC Act or the RDB Act vis- -vis Companies Act, cannot be held applicable on all fours to the SARFAESI Act. There is nothing lacking in the Act so as to borrow anything from the Companies Act till the stage the secured assets are sold by the secured creditors in accordance with the provisions in the SARFAESI Act and the Rules. Reference is then made to Paragraph 31:- 31. The aforesaid view commends itself to us also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made to Annexure-A-6 (Colly) (Page 67), Annexure-A-7 (Colly) (Page78) and Annexure-A-8 (Colly) (Page 83) to demonstrate that the Bank took various efforts and steps to serve the Corporate Debtor. The Counsel pointed out that the Bank had even moved the Authorities of the Postal Department and they have reported (Page87) of notice being served on 1st May, 2019 and even given proof of the delivery at Registered Office of Corporate Debtor which is at Page 88. 6. The learned Counsel for the Respondent Bank is relying on Judgement of this Appellate Tribunal in the matter of Aditya Kumar Jajodia Vs. Srei Infrastructure Finance Ltd.and Ors. , Company Appeal (AT) (Insolvency) No. 292, 293 and 324 of 2017 dated 26th April, 2018, reported in MAN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as ordered and upon service of notice upon the Corporate Debtor dated 14-5-2019, 18-7-2019 7-8-2019, perusal of the affidavit collectively discloses that the Corporate Debtor has been duly served as is evident from the correspondence exchanged as between the petitioner as well as the Post Master, Saraswati Vihar Post Officer, Delhi-110034, wherein it is evident that the Corporate Debtor has been served with the notice of the proceedings and acknowledged by the Corporate Debtor and inspite of these facts, there is no appearance on part of Corporate Debtor deliberately and we are constrained to proceed with the matter in the absence of Corporate Debtor. The Adjudicating Authority held that service has been done and considering the docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Companies Act. Insolvency Bankruptcy Code 2016 is subsequent Code to SARFAESI Act of 2002 Recovery of Debts Due to Banks Financial Institution Act, 1993 with provision of Moratorium under section 14 and Section 238 giving the Provisions of the Code overriding effect on other laws. The Judgment relied on by learned Counsel for Appellant does not appear to support the argument of learned Counsel for Appellant that if Bank had resorted to SARFAESI or proceeding before D.R.T. it is barred from resorting to IBC. 9. The defence raised by the Appellant to the Section 7 application is answered in Para 3 and 4of Judgment of this Tribunal in the matter of Aditya Kumar (supra) where it is observed as under:- 3. Learned counsel appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal or appeal pending before Debt Recovery Appellate Tribunal cannot proceed in view of the order of moratorium as may be passed. 27. It is also desirable to refer to Section 238 of the I B Code, as quoted below: 238. Provisions of this Code to override other laws- The provisions of this Code shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law. In view of the aforesaid provision also, I B Code shall have the effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force including DRT Act, 1993; SARFAESI Act, 2002; money suit etc. The pendency of acti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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