2011 (5) TMI 1159

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....ed order dated 19.5.2010 passed by the AAIFR on an appeal of the petitioner. We may note that since some common questions of law were involved a number of appeals had been dealt with in this common order though facts of each case had been dealt with separately. 2. We may note that the petitioner had laid a challenge to the impugned order earlier by filing WP (C) No.613/2011, which was listed for the first time on 1.2.2011 when learned counsel sought to withdraw the writ petition with leave to file a proper petition setting out the complete facts along with the relevant documents. We have recorded that the ambiguity in the writ petition inter alia was on account of the issue whether there was not even a second charge created in favour of Ce....

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....s net worth exceed its accumulated losses and hence it was just, equitable and in public interest for the petitioner company to be wound up, for which, a show cause notice was issued to the petitioner company. Thereafter a fresh rehabilitation proposal filed, was examined, and thus the petitioner was permitted the opportunity of making its net worth positive latest by 31.3.2003; keeping the winding up proceedings in abeyance. Even these directions were not complied with but the petitioner succeeded in the challenge laid before the AAIFR for reconsideration by the BIFR. However, in the proceedings of 14.10.2008, the CBI informed of the action taken under Section 13(4) of the SARFAESI Act by taking over possession of the charged assets which ....

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....ed 27.7.1993." 8. The DRT thereafter concluded as under: "11….There is valid and subsisting second charge of the Applicant Bank over the assets of Defendant No.1 company as there is first charge of Defendant No.4, who too (illegible) Defendant No.1. So, it is hereby declared that the Applicant bank having second charge over the hypothecated plant, machinery and other assets to Defendant No.1 company…." 9. Learned counsel for the petitioner seeks to raise the same issues before us by contending that the undisputed position was that the State Industrial and Investment Corporation of Maharashtra Limited (for short 'SICOM') had the first charge in the share of the debt and the debt of SICOM was 72 per cent while that of CBI wa....

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....ned in paragraph Nos.10(a) and 10(b). These observations read as follows: "10(a) We are also of the view that once the jurisdiction of the BIFR was divested by the mandatory impact of the 2nd (sic) proviso to Section 15(1), the BIFR could not pass any orders under the SICA notwithstanding the subsequent developments. Orders sought by the petitioner from the BIFR could have been passed either under the SARFEASI or by a writ court exercising jurisdiction under Article 226 of the Constitution. 10(b) The phrase have taken measures obviously contemplates a measure already adopted and cannot be construed to mean that the jurisdiction of the BIFR would depend upon subsequent alteration in the composition of the consortium of the creditors once....

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.....04.2001 passed in SLP Nos.20026-20029/2008 entitled M/s. Bestavision Electronics Ltd. Vs. Punjab National Bank and Ors., we have not been able to persuade ourselves to come to the conclusion that Supreme Court has taken a view contrary to that of the Division Bench of this Court. If a reference abates on the ground that the secured creditors have taken measures under section 13(4) of the SARFAESI Act, it is not for the BIFR to determine whether the requisite conditionalities contained in SARFAESI Act are fulfilled in particular, as to whether the secured creditor singly or in a consortium hold 3/4th or more of the value of the amount outstanding on the record date. In our opinion, the observations of the Division Bench in the case of Punja....

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....he facts of the present case since the undisputed position is that there were only two secured creditors out of which one has been satisfied and thus CBI being the only remaining secured creditor holds 100 per cent of the secured debt. The issue is, thus, squarely covered by the decision of this Court in Punjab National Bank & Ors. case (supra) dealing with M/s. Bestavision Electronics Limited case. 18. In so far as the plea of CBI being a secured creditor or not, we cannot rely upon a communication of SICOM as is sought to be canvassed by learned counsel for the petitioner before us. This issue is no more res integra in view of the judgement of the DRT dated 1.4.2004. Undisputedly, this judgement has never been assailed to date before any....