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4. I have heard the arguments of Sri K.S.Mahadevan, learned Advocate appearing for OL, Sri Nanjunda Reddy, learned Sr. Advocate appearing on behalf of Sri D Aswathappa, for respondent-1 and Sri Udaya Shankar, learned Advocate appearing for respondent-2.
5. It is the contention of Sri K.S.Mahadevan, learned Advocate appearing for OL that any sale made during pendency of winding up proceedings, without permission of Company Court is bad in law. He contends that OL is joint owner of property and he has a pari-passu charge over the property by virtue of Section 529A of the Companies Act, 1956. He would also contend that in the case of ALLAHABAD BANK vs CANARA BANK & ANOTHER reported in (2000)4 SCC 406 the examination and interpretation of Section 529-A (1)(a) was not under consideration and it was the subject matter of consideration by Larger Bench of the Apex Court in ANDHRA BANK vs OFFICIAL LIQUIDATOR & ANOTHER reported in (2005)5 SCC 75 whereunder it has been held that finding recorded in paragraph 76 of the judgment in ALLAHABAD BANK's case does not lay down the correct law and as such, he contends that the dicta laid down in ALLAHABAD BANK's case need not be considered in view of subsequent larger Bench judgment of ANDHRA BANK's case referred to supra, whereunder it has been held that power under Section 446 of the Companies Act, 1956 can only be exercised upon consideration of respective contentions of the parties raised in a suit or proceeding or any claim made by or against company and determination of priorities amongst creditors would also fall for consideration if parties claiming the same were before the Court. He would also submit that Apex Court in the case of MAHARASHTRA STATE CO-OPERATIVE BANK LIMITED vs ASST.PROVIDENT FUND COMMISSIONER & OTHERS reported in (2009) 10 SCC 123 while considering the priority clause found in Employee's Provident Funds and Miscellaneous Provisions Act, 1952 has held that the use of expression "all other debts" would imply that priority clause would operate against statutory as well as non-statutory and secured as well as unsecured debts including mortgage or pledge and said Act being a social welfare legislation intended to protect the interest of weaker Section of Society, Courts have to give a purposive interpretation to the provisions contained therein keeping in view the directive principles of State Policy embodied in Articles 38 and 43 of the Constitution of India and contends that same would hold good insofar as Section 529A is concerned which Section has to be interpreted in favour of the workmen inasmuch as, the sale of a immovable property or the assets belonging to the company (in liquidation) is sold without reference to OL, it may not fetch the price which it would have if the OL had been associated with and it is for this precise reason, a pari-

8. Having heard the learned Advocates appearing for parties and on perusal of the pleadings as well as case laws pressed into service by respective learned Advocates, I am of the considered view that following points would arise for my consideration:

(1) Whether Debt Recovery Tribunal through its Recovery Officer under the provisions of Recovery of Debts due to Banks and Financial Institutions Act, 1993 is empowered to sell the assets of a company under liquidation at the instance of secured creditor, without leave of the Company Court or without associating the official liquidator, despite deemed pari-passu charge of said assets in favour of official liquidator Under Section 529A of companies Act?

1st Proviso to Section 529 came to be introduced by Act 35 of 1985 making it clear that the security of secured creditor would be deemed to be subject to a pari-passu charge in favour of the workmen to the extent of the workmen's dues. Section 529A which also came to be inserted by Act 35 of 1985 enabled the legitimate dues of the workers to rank on pari-passu with secured creditors and even above the dues to the Government in the event of winding up of a company. 1st proviso to Section 529(1) and 529A, which were introduced by Act 35 of 1985 would ensure that a secured creditor who intends to realise his security by remaining outside the winding up will have to act in association with the Official Liquidator who represent the workman while selling the assets of the Company (in liquidation). The status of the secured creditor is conferred on the workman by operation of law i.e., by virtue of Section 529, 529A and 530 conferring substantial rights and benefits on the workmen of a closed undertaking and such workmen would get pari-passu charge over the assets of the Company (in liquidation) along with the secured creditors. Perusal of Section 537 would indicate that if any attachment, distress or execution is put in force without leave of the Company Court against the estate or effects of the Company (in liquidation) after commencement of winding up or any sale held of any of the properties or effects of such company without leave of the Company Court same would be void. However, the exception is relating to proceedings initiated for recovery of any tax or dues payable to the Government.

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"16. In International Coach Builders Limited Vs. Karnataka State Financial Corporation [(2003) 10 SCC 482], this Court considered the correctness of the views expressed by the Karnataka High Court and the Gujarat High Court. This Court held that a right is available to a financial corporation under Section 29 of the SFC Act against a debtor, if a company, only so long as there is no order of winding up. When the debtor is a company in winding up, the rights of financial corporations are affected by the provisions in Sections 529 and 529-A of the Companies Act. It was also held that the proviso to Section 529 of the Companies Act creates a "pari passu' charge in favour of the workmen to the extent of their dues and makes the liquidator the representative of the workmen to enforce such a charge. The decision of the Bombay High Court in Maharashtra State Financial Corpn. Vs. Ballarpur Industries Ltd. [AIR 1993 Bom 392] was approved. The reference to a larger bench was occasioned by the fact that the decision in Allahabad Bank Versus Canara Bank and Anr (supra) was not adverted to in this decision. This decision recognizes that, whether a creditor is standing outside the winding up or not, the distribution of the proceeds has to be in terms of Section 529 of the Companies Act read with Section 529A of that Act in a case where the debtor is a company-in-liquidation. As far as we can see, there is no conflict on the question of the applicability of Section 529A read with Section 529 of the Companies Act to cases where the debtor is a company and is in liquidation. The conflict, if any, is in the view that the Debts Recovery Tribunal could sell the properties of the Company in terms of the Recovery of Debts Act. This view was taken in Allahabad Bank Versus Canara Bank and Anr (supra) in view of Recovery of Debts Act being a subsequent legislation and being a special law would prevail over the general law, the Companies Act. This argument is not available as far as the SFC Act is concerned, since Section 529A was introduced by Act 35 of 1985 and the overriding provision therein would prevail over the SFC Act of 1951 as amended in 1956 and notwithstanding Section 46B of the SFC Act. As regards distribution of assets, there is no conflict. It seems to us that whether the assets are realized by a secured creditor even if it be by proceeding under the SFC Act or under the Recovery of Debts Act, the distribution of the assets could only be in terms of Section 529A of the Act and by recognizing the right of the liquidator to calculate the workmen's dues and collect it for distribution among them pari passu with the secured creditors. The Official Liquidator representing a ranked secured creditor working under the control of the company court cannot, therefore, be kept out of the process."