1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. COMPANY APPLICATION NO.1170 OF 2009 IN COMPANY PETITION NO.970 OF 1997 Mineral Sales Pvt. Ltd. ...Petitioner. Vs. Otoklin Plants & Equipment Ltd (in Liqn). ...Respondent. And International Asset Reconstruction Co.Pvt.Ltd. ...Applicant. And The Official Liquidator. ...Respondent. .... Mr. Ashish Kamath i/b. M/s. V.Deshpande & Co. for the Applicant. Ms.Sarika S. Karnik i/b. Shakunkala Joshi for the Respondent. Mr.P.Ramarao, O.L. present. ..... CORAM : DR.D.Y.CHANDRACHUD, J. November 26, 2009. P.C. The relief that is sought in the Company Application is a direction to the Official Liquidator to hand over possession of the assets of the Company in liquidation which have been mortgaged to the Applicant. A direction has been sought to the Liquidator to call for claims from Creditors of the Company and to adjudicate upon them under Sections 529, 529(A) and 530 of the Companies’ Act, 1956. 2 The assets mortgaged by the Company in liquidation include a plot of land bearing Plot No.C-25 admeasuring 7999 sq.yards in the Taloja Industrial Area. A memorandum evincing the creation of a mortgage by deposit of title deeds was executed on 3rd August 1992. Bank of Baroda instituted a claim before the Debts Recovery Tribunal which culminated in a decree dated 5th September 2005. The Applicant has entered into a registered Deed of Assignment with the Bank of Baroda dated 28th January 2008. The applicant has stepped into the shoes of the Bank of Baroda which was a secured creditor. The Applicant has taken measures under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. On 9th June 2009 a notice was issued by the Applicant under Section 13(2) of the Act. Pursuant thereto, a possession notice was issued on 22nd September 2009 and formal possession was taken. A letter was addressed to the Liquidator on 29th September 2009 calling upon him to hand over actual and physical possession of the assets at Taloja to the Applicant. 3 The Applicant has exercised powers under the Securitization Act. The Supreme Court, in its judgment in Allahabad Bank vs. Canara Bank, AIR 2000 SC 1535, held that the provision of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 would override the powers of the Company Court under the Companies' Act, 1956. The position of a secured creditor who exercised his powers under the Securitization Act has been considered by a Learned Single Judge in Akola Oil Industries vs. State Bank of India, 2005(5) Bom.C.R 706. The Learned Single Judge held that a secured creditor, while proceeding under the RDB Act or Securitization Act does not need the permission of the Company Court. Besides, it may be noted that Section 35 of the Securitization Act gives overriding effect to the provisions of the Act, notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Having regard to the clear position in law, as noted above, the Company Application would have to be granted. The Company Application is made absolute in terms of prayer clause (a). 4 In so far as prayer clauses (b) and (c ) are concerned, the Liquidator is directed to call for claims of creditors and employees of the Company within a period of four weeks from today and to adjudicate upon them expeditiously within a period of eight weeks from the expiry of the last date for the submission of claims. The expenses that are to be incurred by the Official Liquidator on account of the publication of an advertisement inviting claims shall be met, at the first instance, by the Applicant. In the alternative, Counsel appearing on behalf of the Applicant has stated that the Applicant would take steps to issue the advertisement as approved by the Official Liquidator. Ordered accordingly. The Company Application is accordingly disposed of. ...