M/s Alchemist Asset Reconstruction Company Ltd v. ICICI Bank Ltd & Ors.

Mr. A.K.Chopra, Sr. Advocate with Mrs. Radhika Suri, Advocate and Ms. Rupa Pathania, Advocate for the appellant. Ms. Jaishree Thakur, Advocate for respondent No.2. Mr. R.C.Setia, Sr. Advocate with Mr. S.S.Behl, Advocate for respondent No.3. ... ASHUTOSH MOHUNTA, J. The appellant has filed the instant appeal under Section 483 of the Companies Act, 1956 being aggrieved by the impugned order dated

21.8.2009 passed by the Company Judge whereby it has restrained the dispossession of the Management of respondent No.3 Company and has also restrained the Deputy Commissioner, Rewari, from passing any order under Section 14 of the SARFAESI Act. It is the case of the appellant that they are an asset CAPP No. 41 of 2009 (O&M) [ 2 ] reconstruction and securitisation company and are secured creditors of respondent No.3 company and have taken action under Section 13(4) of SARFAESI Act on the assets of respondent No.3 Company on 17.8.2009 and have also got the possession notice published in newspapers on

19.8.2009. The appellants have approached the Deputy Commissioner, Rewari, under Section 14 of the SARFAESI Act for obtaining the physical possession of the mortgaged assets. Mr. Chopra, counsel for the appellant, has contended that the order dated 21.8.2009 passed by the Company Judge interferes with the right of the appellant as a secured creditor to take over possession of the assets of respondent No.3 Company for realisation of its dues. It is contended that the aforesaid order is liable to be set aside. It is submitted that the provisions of the SARFAESI Act have an overriding effect over the provisions contained in any other law and hence possession of the assets belonging to respondent No.3 Company ought to have been handed over to the appellant by the Company Judge. It is contended that the Company Court has a limited jurisdiction under the Companies Act and cannot override the provisions of SARFAESI Act. Learned counsel has further submitted that the Company Court has erred in directing that the present Management be not dispossessed and restrained the Deputy Commissioner, Rewari, from passing any order under Section 14 of the SARFAESI Act especially when the appellant has already initiated action under Section 13 (4) of the SARFAESI Act in respect of assets of respondent No.3 Company. In support of his argument, counsel for the appellant has placed reliance on a Division Bench judgment of this Court in CAPP No. 23 of 2009 (Haryana State Industrial & Infrastructure Development CAPP No. 41 of 2009 (O&M) [ 3 ] Corporation v. Haryana Concast Limited, Hisar and another) decided on

15.12.2009. On the other hand, learned counsel for the respondent has urged that the learned Company Judge did not finally decide the matter and it is still pending. Therefore, no relief can be granted in this appeal being premature. We have heard the arguments of the counsel for the appellant as well as counsel for the respondents. There is no dispute with regard to the law laid down by this Court in Haryana State Industrial & Infrastructure Development Corporation's case (supra) that the provision of SARFAESI Act would prevail but the same would not come to the rescue of the appellant at this stage, because a bare perusal of the impugned order would reveal that the learned Company Judge has not decided the matter finally and only protected the possession of the Company as an interim measure, keeping in view the fact that appropriate orders on the application moved by respondent No.2 or on the prayer made by the appellant for appointment of a provisional Official Liquidator are yet to be passed. Moreover, the interest of the secured creditors including the appellant has been safeguarded by the Company Court vide interim order dated 8.10.2004 vide which respondent No.2 has been restrained from alienating any immovable property including its plant and machinery. It is pertinent to mention here that there are a large number of employees/workers who are employed with the respondent Company, which is a running functional unit. It is not a matter of dispute that the matter is fixed for hearing before the Company Judge on 26.3.2010 and as the Company Judge has CAPP No. 41 of 2009 (O&M) [ 4 ] passed the impugned order only as an interim measure and the matter is yet to be decided in this respect, therefore, we find no ground to interfere in the impugned order dated 21.8.2009 passed by the Company Judge at this stage and, accordingly, this appeal is dismissed. Needless to say, the appellant may agitate the matter before the Company Judge at an appropriate stage. ( ASHUTOSH MOHUNTA ) JUDGE

16.2.2010 Rupi ( MEHINDER SINGH SULLAR ) JUDGE CAPP No. 41 of 2009 (O&M) [ 5 ] A perusal of the impugned order dated 21.8.2009 passed by the Company Judge shows that the interest of the secured creditors including the appellant has been safeguarded by the Company Court vide interim orders dated 8.10.2004 vide which respondent No.3 has been restrained from alienating any immovable property including its plant and machinery. Apart from the above, the Company Court has not passed any orders on the prayer made by the appellants for appointment of a provisional official liquidator and, thus, as an interim measure, the Company Court had directed the Management of respondent No.3 Company not to be dispossessed and had also restrained the Deputy Commissioner, Rewari, from passing any orders under Section 14 of the SARFAESI Act. It is pertinent to mention here that there are a large number of employees/workers who are employed with the respondent Company which is a running functional unit. There is no dispute with regard to the proposition laid down by the Division Bench in CAPP No. 23 of 2009. However, in the instant case the orders have been passed only as an interim measure. The matter is fixed for hearing on

26.3.2010. As the Company Court has passed the interim orders only as an interim measure and the matter is to come up for hearing in the near future, therefore, we find no ground to interfere in the impugned order dated

21.8.2009 passed by the Company Judge and, accordingly, this appeal is dismissed.