(Prayer: This C,A, is filed by the applicant u/s 151 of the code of Civil Procedure, praying to pass appropriate orders to direct the Official Liquidator to supervise the sale of the secured asset of the Company in Liquidation by the secured creditor, who is trying to undersell the Asset, and report compliance to this Hon ble Court, and etc.,)
Sri. James P. Arun Kumar, Advocate for applicant;
Sri. V. Jayaram, Advocate for Official Liquidator;
Sri. Aditya Sondhi, Senior Counsel for
Sri. B.C. Avinash, Advocate for secured creditors
(M/s. Pheonix Arc Pvt. Ltd.)
1. Heard on C.A.No.969/2015 and OLR No.341/2015.
2. C.A.No.969/2015 has been filed by one of the shareholders Rashmi Thakeria, Promoter-Shareholder of Natural Textiles Private Limited (in liquidation) to the effect that, even though the assets of the company in liquidation are taken over by the secured creditor-Phoenix Arc Private Limited (ARC-an Asset Reconstruction Company) under the provisions of SARFAESI Act, 2002, the applicant, Promoter Shareholder wants to ensure that the said Assets Reconstruction Company recover the best possible price for the assets of the company in liquidation, so that, the rights of the present applicant do not get affected adversely and therefore, this Company Court may interfere and direct the Official Liquidator to supervise the sale of the secured asset of the Company by the aforesaid secured creditor- ARC under the provisions of SARFAESI Act, 2002.
3. Learned counsel for the said secured creditor- ARC on the other-hand has brought to the notice of the Court that, such intervention of the Company Court is no longer permissible in view of the binding precedent rendered by the Hon ble Supreme Court of India in the case of Pegasus Assets Reconstruction P. Ltd. Vs. M/s. Haryana Concast Limited and another reported in 2016 (4) SCC 47 in which, the Hon ble Supreme Court has held as under:
24. Since we have held earlier in favour of views of Delhi High Court, it is not necessary to burden this judgment with the case laws which support that view and have been noted by the High Court. We are in agreement with the submissions advanced on behalf of respondent Kotak Mahindra Bank as well as respondent No.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 SFC Act or RDB Act vis- -vis the Companies Act, cannot be held applicable on all force 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. At the post sale stage, the rights of the persons or parties having any stake in the sale proceeds are also taken care of by sub section (9) of Section 13 and its five provisos (not numbered). It is significant that as per sub Section (9) a sort as consensus is required amongst the secured creditors, if there are more than one, for the exercise of rights available under sub-section (4). If borrower is a company in liquidation, the sale proceeds have to be distributed in accordance with the provisions of Section 529A of the Companies Act even where the company is being wound up after coming into force of the SARFAESI Act, if the secured creditor of such company opts to stand out of the winding up proceedings, it is entitled to retain the sale proceeds of its secured assets after depositing the workmen s dues with the liquidator in accordance with the provisions of Section 529A of the Company Act. The third proviso is also meant to work out the provisions of Section 529A of the Companies Act, in case the workmen s dues cannot be ascertained, by relying upon communication of estimate of such dues by the liquidator to the secured creditor, who has to deposit the amount of such estimated dues with the liquidator and then it can retain the sale proceeds of the secured assets. The other two provisos also are in aid of the liquidator to discharge his duties and obligations arising under Section 529A of the Companies Act. Thus, it is evident that the required provisions of the Companies Act have been incorporate in the SARFAESI Act, for harmonizing this Act with the Companies Act in respect of dues of workmen and their protection under Section 529A of the Companies Act. In view of such exercise already done by the legislature, there is no plausible reason as to take recourse to any provisions of the Companies Act and permit interference in the proceedings under the SARFAESI Act, either by the Company Judge or the liquidator. As noted earlier, the Official Liquidator as a representative of the borrower company under winding up has to be associated, nor for supplying any omission in the SARFAESI Act but because of express provisions therein as well as in the Rules. Hence the exercise of harmonizing that this Court had to undertake in the context of SFC Act or the RDB Act is no longer warranted in respect of SARFAESI Act vis- -vis the Companies Act.
25. The aforesaid view commends itself to us also because of clear intention of the Parliament expressed in Section 13 of the SARFAESI Act that a secured creditor has the right to enforce its security interest without the intervention of the court or tribunal. At the same time, this Act takes care that in case of grievance, the borrower, which in the case of a company under liquidation would mean the liquidator, will have the right of seeking redressal under Sections 17 and 18 of the SARFAESI Act.
34. The views expressed and the orders passed hereinabove may once again be recapitulated as follows: (1) Civil Appeal No.3646 of 2011 is allowed only for declaration of law without interfering with the sale of the secured assets which has not been challenged by Pegasus. (2) Civil Appeal No ./2015 (Arising out of SLP (C) No.7074 of 2010) is dismissed. (3) Civil Appeal ./2015 (Arising out of SLP (C) Nos.117-118 or 2011) are dismissed. The amount of Rs.50 Crores deposited by the intervener M/s. Himalayan Infra Projects Private Limited shall be refunded to it forthwith along with interest accrued thereupon. (4) Civil Appeal Nos.9293-94/2014 are dismissed. The judgment and order of the Delhi High Court is affirmed by holding that powers under the Companies Act cannot be wielded by the Company Judge to interfere with proceedings by a secured creditor to realize its secured interests as per provisions of the SARFAESI Act.
4. In view of the aforesaid settled legal position, the present C.A.No.969/2015 and OLR No.341/2015 deserve to be rejected.
The applicant, shareholder as well as Official Liquidator of the company in liquidation are permitted to raise objections, if any before the competent Tribunal under SARFAESI Act, under Section 17 of that Act, at appropriate stage, in the right of the aforesaid Supreme Court decision.
With these observations, the application CA 965/2015 as well as OLR No.341/2015 are disposed of.