TaxTMI 
TaxTMI 
2010 (10) TMI 89
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.... 2. The learned counsel for the appellant vehemently submitted that since the original petitioner, Asset Reconstruction Company (India) Ltd. (ARCIL) is an assignee of the debt, Company Petition at the instance of ARCIL for winding up is not maintainable. It is further submitted that ARCIL has been assigned the debt by the Dena Bank. The Bank also instituted proceedings before the Debts Recovery Tribunal (DRT). He submits that since the proceedings are pending before the DRT, winding up petition is not maintainable. He further submits that even otherwise the assignment in favour of ARCIL is not a valid assignment under the SARFAESI Act as ARCIL is also a sole trustee. 3. Mr. Madon, learned senior counsel appearing for the respondent, on ....
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....s is clear from a reading of the definition of the term "secured creditor" as defined in section 2(zd) of the Securitization Act. That term includes debenture trustee appointed by the Bank or financial institution or securitisation company or reconstruction company, where acting as such or managing a trust set up by such securitization company or reconstruction company for securitisation or reconstruction company as the case may be or any other trustee as contemplated by section 2(zd)( iii). The term security interest is defined in section 2(zf) of the Securitization Act and it means right, title and interest of any kind whatsoever of property created in favour of any secured creditor and includes any mortgage, charge, hypothecation and ass....
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.... 6. The question as to whether the proceedings for winding up of the Company before the Company Court is maintainable on the ground that the principal creditor i.e., Dena Bank has already moved DRT to recover the debt wherein ARCIL is also substituted as an assignee. ARCIL has also moved an application to join as a party to the said proceedings as it has taken over the assets and not liabilities by way of assignment. 7. Mr. Madon has also relied upon the judgment of the High Court of Bombay in the case of Viral Filaments Ltd. v. Indusind Bank Ltd. [2001] 33 SCL 132 , wherein it has been held as under : "19. Mr. Shah then made an argument which appears to us to be one of desperation. He contends that an order of winding up is a disc....
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....t the statutory presumption to fall upon, which he rightly followed up with an order or admission of the petition. Hence, we are unable to say that the learned Company Judge in any way erred in admitting the petition for winding up." 8. Considering the said fact, it cannot be said that ARCIL has no locus to move winding up petition before the Company Court as it is an admitted fact that the debt is assigned by Dena Bank in favour of ARCIL and by virtue of such assignment, winding up petition is filed. As pointed out above, since the Company is unable to pay its debts and since considering the report of the Chartered Accountant and the balance-sheet, the Company is totally insolvent which, in our view, has rightly been ordered to be wound....