TaxTMI 
TaxTMI 
2010 (4) TMI 612
X X X X Extracts X X X X
X X X X Extracts X X X X
....he principal contention of the petitioner is that the value of the Ranoli property is much higher than the rate which was mentioned in the tender notice and as such, the respondents should not be permitted to proceed with the sale of the property. One of the reliefs prayed for, is to declare the sale of debt by assignment, if any, as illegal and impermissible in law. This plea is principally based on the judgment of the Gujarat High Court in O.J. Appeal No. 156 of 2007 arising from Company Application No. 489 of 2006 in Official Liquidator's Report No. 88 of 2006 and other matters. The learned Bench of the Gujarat High Court has taken a view that the assignment of debts in favour of Kotak Mahindra Bank Limited was violative of section 23 of the Indian Contract Act. That judgment is the subject-matter of the Special Leave Petitions before the Supreme Court, where several directions have been given. 4. Writ Petition (Lodg.) No. 280 of 2010 is also by an another union claiming to represent the erstwhile workmen of the Company-in-liquidation. Though various contentions were raised in the petition, the principal contentions argued before this Court were the same as has been raised in....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... had taken possession of the three immovable properties in pursuance of the powers vested under the Securitisation and Reconstruction of Financial Asset and Enforcement of Security Interest Act, 2002 (Securitisation Act). In the Company Petition, in an application made, in the order dated 25-1-2007, on behalf of SASF it was stated that it was a secured creditor and it would stand outside the winding up and that the property at Sahad, Boisar and Ranoli are mortgaged to SASF by the Company-in-liquidation. It was stated that SASF would take steps under the Securitization Act and take possession in accordance with the provisions of law. This Court observed that if steps are not taken within eight weeks, the court would direct the Official Liquidator to take such steps as are permissible under the Companies Act. By a further order of 19-4-2007, the Company Court observed that since steps have already been taken by SASF under the Securitization Act, no directions are warranted on the report of the Official Liquidator. The Official Liquidator had sought permission to take possession of three units and to permit the secured creditors to appoint a valuer. The Court observed that these praye....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of APS Star Ind. Ltd. [O.J. Appeal No. 150 (Guj.) of 2007]. There were directions that the sale was not to be confirmed till 28-1-2009 and further that if applicants move an application before the Debt Recovery Tribunal on or before 28-1-2009, the sale would not be confirmed till the interim application in the appeal is decided and for a period of two weeks thereafter. Another application by the Chemical Mazdoor Sabha was disposed of in view of the disposal of the application made by Navinon Employees Forum. 10. In proceedings before the Debt Recovery Tribunal in Securitization Application No. 3 of 2008, there was an application by six applicants, who were aggrieved by the action of PMC-Bank in taking possession of the three immovable properties on 11-10-2007. Their contention was that this was in breach of their rights and in contravention of section 13(9) of the Securitisation Act. It was their contention that they had filed application against the Company-in-liquidation for recovery of an amount of Rs. 91 crores by liquidating hypothecated properties and that PMC-Bank and SASF took possession of the three properties in total disregard to their claim over the hypothecated pro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s union/workmen were unable to pay Rs. 50,000 as stamp duty. 14. Both the petitions raise identical issues. The first question that we have been called upon to answer is, "Whether when the petitioner has an efficacious remedy under section 13(9) proviso to the Securitization Act, is it open to this Court to entertain this petition, considering the Rule of alternative remedy ?" We have already noted the various proceedings either taken out by the Navinon Employees Forum or the Chemical Mazdoor Sabha. The Union representing the workmen or the workmen themselves while withdrawing some of the proceedings did do so with a view to avail of the remedy available under the Securitization Act. This by itself in our opinion disentitles the Union/workmen from invoking the extraordinary jurisdiction of this Court. True, only because of an alternative remedy, this Court would not refuse the exercise its extraordinary jurisdiction, considering the law decided by the Supreme Court and it is still open to a party to move/take recourse to the alternate remedy. Can it be said that the sale held is a nullity at law and consequently this Court should exercise its extraordinary jurisdiction. In ou....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the application was the Deed of Assignment executed on 31-3-2008 by ICICI Bank Ltd. with Kotak Mahindra Bank Ltd. by which a basket of debts of the Assignor Bank along with underlying security interest, if any, had been assigned/transferred on "as is where is" and "as is what is" basis. A preliminary objection was raised on behalf of the Official Liquidator and the argument was that substitution could not be allowed. The Division Bench of the Gujarat High Court addressed itself to the issue as to whether it was open to the ICICI Bank Ltd. to transfer the non-performing assets and whether Kotak Mahindra Bank Ltd. could purchase such NPAs/Debts, by the Deed as a business or a part of the business of the bank, in light of the provisions of the Banking Regulations Act, 1949. The learned Bench considered the provisions of Transfer of Property Act, provisions of the Banking Regulations Act and other provisions. On consideration of the various contentions, the learned Bench noted the scheme of the Securitisation Act, would indicate that it was enacted as there was no legal provision for facilitating securitisation of financial assets of banks and financial institutions. The Court held th....