TaxTMI 
TaxTMI 
2015 (3) TMI 416
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....tice under Section 434 of the Companies Act, 1956 by the appellant company, is recorded in the order passed by the learned Single Judge. While assailing the aforesaid order of admission of winding up application, the appellant company could not dispute any finding of the learned Single Judge on the factual score, far less the appellant could raise any bona fide dispute with regard to the claim of the respondent. Mr. Ratnanko Banerjee, learned Senior Advocate assisted by Mr. Siddhartha Banerjee assailed the order under appeal only on points of law. Mr. Banerjee first urged, the respondent was a secured creditor and it held various immovable properties of the appellant as security and as such the learned Single Judge should have exercised discretion not to admit the winding up petition. In support of such contention Mr. Banerjee relied on a decision of a learned Single Judge this Court in the case of Kotak Mahindra Bank Ltd. Vs. Eastern Spinning Mills and Industries Ltd reported in [2012] 175 Comp Cas 71 (Cal)]. In the said decision, after considering the relevant provisions contained in the Companies Act, 1956 particularly Sections 433, 434 and 439 thereof the learned Single Judg....
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....ve petition the Supreme Court directed stay of all proceedings of the company petition after hearing all the parties at some length, by subsequent decision dated September 1, 2014, the Supreme Court dismissed the said special leave petition. Mr. Banerjee, however, submitted, by the said order dated September 1, 2014, the Supreme Court made it clear that it would be open for the company to raise all issues and objections with regard to the applicability of Section 433 (e) and (f) of the Companies Act to the present proceeding and on that basis the learned Single Judge will decide such objections before issuing any direction as regards the admission or advertisement. In view of this observation of the Supreme Court in the said order, according to Mr. Banerjee, we should not construe that the decision of the Division Bench in the said case of Kotak Mahindra Bank (supra) reported in [2013] 177 Comp Cas 15 (Cal) has been upheld by the Supreme Court and as such we should once again give our fresh decision on the first contention raised by Mr. Banerjee relying on the said decision of the learned Single Judge in the said case of Kotak Mahindra Bank Ltd. Vs. Eastern Spinning Mills and In....
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....of an exclusively tribunal, both for adjudication and execution, is a procedure clearly inconsistent with realization of these debts in any other manner. According to Mr. Banerjee, in view of the said findings of the Supreme Court in the said case of reported in Allahabad Bank vs. Canara Bank (supra) the RDB Act, 1993 overrides the provision of Sections 433, 434 and 439 of the Companies Act and no bank or financial institution can file any winding up against its borrower. Mrs. Meena Venugopal, learned advocate representing the respondent/company, however, submitted that there is no merit in the said second contention of Mr. Banerjee. According to Mrs. Venugopal, it is true that the respondent bank has approached the appropriate Tribunal for realization of its dues from the appellant company but winding up petition filed against the company is for a different purpose, it is not a proceeding for realization of the outstanding dues from the company. Mrs. Venugopal, produced before the Court the balance sheet and the profit and loss account and other documents of the appellant/company for the financial year ended March 31, 2013 showing substantial loss and the appellant company i....
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....diction and powers are vest with the Debts Recovery Tribunals to issue order and/or certificate for recovery of debts of the banks and financial institutions from their borrowers. From the provisions contained in Section 19 of the RDB Act, 1993 and various sub-paragraphs thereunder, it is further evident, the Debts Recovery Tribunal an exercising jurisdiction and powers under the said Act to pass final order and certificate, specifying the amount found due to the bank/financial institute on account of principal amount and interest till the date of the certificate and interest upto the date of realization or actual payment. By way of amendment of the Act, a Tribunal has also been conferred with the jurisdiction to adjudicate even a counter-claim of the constituent of the bank, if filed. From the object of the RDB Act as also from the provision contained in Sections 17 and 19 of the RDB Act, 1993 it is evident that the said Act was enacted for establishment of Tribunals for expeditious adjudication and recovery of debts due to bank and financial institutions and the Tribunals exercise jurisdiction to decide the applications for recovery of debts due to such banks and financial ....
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....and 537 of the Companies Act, 1956 cannot be applied against a Tribunal exercising powers under RDB Act, 1993. From the provisions contained in the RDB Act, 1993 it is evident that a Debts Recovery Tribunal does not have any jurisdiction to wind up a debtor company. The power of the company court to wind up a company, under the Companies Act, 1956 is in conflict with any provision of the RDB Act, 1993 and the provisions of Section 34 of the RDB Act, 1993 has any application in case of winding up application by a bank or financial institution. Thus, the ratio of the decision of the Supreme Court in the case of Allahabad Bank vs. Canara Bank (Supra), laying down that in case of a conflict between the Companies Act, 1956 and the RDB Act, 1993 the provisions of the latter special Act shall override the previous general Act, has no manner of application in this case. We are also supported in our view by a judgment of the Supreme Court in the case of Haryana Telecom Ltd. vs. Sterlite Industries (India) Ltd. reported in (1999) 5 SCC 688 : AIR 1999 SC 2354. In that case, a winding up petition was filed by a creditor before the High Court and the company filed an application under ....