TaxTMI 
TaxTMI 
2018 (6) TMI 1773
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....er, 2012 and Indenture of Mortgage dated 10th June 2010. 2. In the affidavit in support of the Judge's Summons, it is stated that the applicant seeks to enforce its powers under Section 29 of the State Financial Corporations Act, 1951 (the Act) vis-a-vis the properties of the company in liquidation mortgaged with it to recover the dues outstanding against the company. It is further stated that in exercise of power under Section 29 of the Act, the applicant has taken over the possession of the mortgaged properties and when it was in the process of getting valuation of the properties and taking steps for sale of the properties by advertisement, it received a letter dated 04.08.2015 from the Official Liquidator - opponent no.3 informing that the company was ordered to be wound up on 01.07.2014 and that since the winding up proceedings are pending against opponent no.1 - company, the leave of this Court is required to sell the mortgaged properties. With the affidavit, the applicant has also annexed the copy of the notification issued by the Central Government in exercise of power under Section 46 of the Act whereby it directed that the provisions of Section 29 and other Sections men....
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....order to form the sale committee comprising of the applicant, Official Liquidator and the representatives of the secured creditors, so as to ensure that the mortgaged properties may fetch adequate sale price. 6. Learned advocate Mr. Godiawala appearing for the opponent no.2 - one of the creditors of opponent no.1 - company in liquidation submitted that the only interest which the opponent no.2 has, is to see that the auction proceedings may be conducted in such a way that the properties of the company in liquidation may fetch higher price and for such purpose, the Court may order to form the sale committee as submitted by learned advocate for the Official Liquidator. 7. The Court having heard learned advocates finds that the applicant wants to sell the the properties described in schedule at Annexure - A by auction by claiming that it has exclusive charge over the properties. However, since the properties are of the company in liquidation, the applicant has come before this Court seeking permission to hold auction for sale of the properties. As regards the submission of learned advocate for the applicant that the applicant has exclusive charge over the properties described in....
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....o sell or otherwise transfer the assets of a debtor company-in-liquidation, the said power could be exercised by it only after obtaining the appropriate permission from the company court and acting in terms of the directions issued by that court as regards associating the Official Liquidator with the sale, the fixing of the upset price or the reserve price, confirmation of the sale, holding of the sale proceeds and the distribution thereof among the creditors in terms of Section 529A and Section 529 of the Companies Act. (iv) In a case where proceedings under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 or the SFC Act are not set in motion, the concerned creditor is to approach the company court for appropriate directions regarding the realization of its securities consistent with the relevant provisions of the Companies Act regarding distribution of the assets of the company-in-liquidation. 10. In the year 2015 in Civil Appeal No.5805 of 2005, the Hon'ble Supreme Court considered the decision in the case of Rajasthan State Financial Corporation (Supra) and also considered the decision in the case of A. P. State Financial Corporation Vs. Official Li....
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....rough amendments of 1985 impede even the statutory powers available to a secured creditor like SFCs under Section 29 and the other relevant sections of the SFC Act but the impediment is indeed of a limited nature; its specific purpose being to protect the pari passu charge of the workmen's dues. After ensuring that this purpose is achieved or ensured, the State Financial Corporations can continue to enjoy their statutory rights as secured creditors. They will not be reduced to the status of unsecured creditors and equally will not be required to prove their debts nor will be required to stand in line with other unsecured creditors. A three Judges' bench in the case of Rajasthan State Financial Corporation (supra) approved and followed the earlier views in A. P. State Financial Corporation and in International Coach Builders Ltd. In paragraph 17 of this judgment it was again clarified that the "right of a financial institution or of the Recovering Tribunal or that of a financial corporation or the court which has been approached under Section 31 of the SFC Act to sell the assets may not be taken away, but the same stands restricted by the requirement of the Official Liquidator be....