2011 (2) TMI 1266

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....ts. 2. The case of the respondent-original petitioner before the learned company judge is that it is an assignee of the State Bank of India who had granted various loans to the appellant. The loans were assigned to the respondent vide assignment agreement dated 30-3-2007. The appellant was in arrears of more than Rs. 2.66 crores as on 1-10-1998. The respondent issued legal notice to the appellant on 31-12-1998, followed by another notice dated 15-3-2000. The State Bank of India filed application for recovery before the Debts Recovery Tribunal on 5-2-2001, which was still pending. Proceedings have also been initiated under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act,....

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....ues raised in the company petition were complicated questions and the petition was merely a device to recover the amount. The debt sought to be recovered was barred by limitation and the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short, "the RDB Act") was a Special Act. Learned counsel relies upon following judgments : 1.Allahabad Bank v. Canara Bank [2000] 101 Comp. Cas. 64 ; AIR 2000 SC 1535 To submit that RDB Act overrides the provisions of the Companies Act and leave of the company court was not necessary for continuing proceedings under the said Act. 2.Mediqup Systems (P.) Ltd. v. Proxima Medical System GmbH [2005] 59 SCL 255 (SC) To submit that debt recovered under section 433 of the Companies Act m....

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....d merely on account of pendency of proceedings before the Debts Recovery Tribunal. The judgment relied upon on behalf of the appellant in Allahabad Bank's case (supra), does not advance its case. Therein the question was whether permission of the company court was required to continue a proceeding before the Debts Recovery Tribunal and not whether the company petition for winding up was maintainable. As regards the amount being ascertainable, admittedly, the appellant took loan from the bank which has been assigned in favour of the respondent and the amount due is more than Rs. 500. Thus, the judgment in Mediqup Systems (P.) Ltd.'s case (supra), is distinguishable. The bank has already filed a suit and the debt is not shown to be barred by ....