Indian Kanoon - Search engine for Indian Law

3. Mr. Andhyarujina pointed out that such an ex- parte order was passed on the supposition that there were dues to the extent of Rs.1,100.00 crores payable by the Respondent and that proceedings had also been taken under Section 17 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act, 2002) even though the BIFR had recommended the winding up of the Petitioner Company and finalization of those proceedings was still pending before the Company Court where the Official Liquidator had been put in charge of the functioning of the Petitioner Company. The Petitioner Company, being aggrieved by the said interim order of the Division Bench of the High Court, moved the instant Special Leave Petition and on 8th October, 2010, while issuing notice and giving directions for filing of affidavits, this Court stayed the operation of the order of the High Court which has been impugned in the Special Leave Petition. The result was that the order of the Debts Recovery Appellate Tribunal revived and according to the Petitioner, despite such order of stay passed by this Court, the alleged contemnors continued with the auction process in violation of the order of stay passed by this Court.

12. Thereafter, on 10th August, 2009, IFCI Ltd. issued a notice of demand to the Petitioner Company under Section 13(2) of the SARFAESI Act, 2002, for a sum of Rs.1139.75 crores. The said claim was refuted by the Petitioner Company on 17th September, 2009, denying the right of IFCI Ltd. to the sum as demanded. It was stated that the Memorandum of Understanding between the Petitioner Company and ACE would indicate that ACE was only entitled to a sum of Rs.15,01,28,752.00 and nothing more. Subsequent thereto, on 10th October, 2009, IFCI Ltd. took symbolic possession of the property of the Petitioner Company situated at Gannore in the State of Haryana. The Petitioner Company also filed a suit, being CS (OS) No.1886 of 2009, to injunct IFCI Ltd. from proceeding in accordance with the notice dated 10th August, 2009, which was, however, dismissed by the High Court on the ground of lack of jurisdiction on 10th September, 2010.

2.

15. Mr. Andhyarujina submitted that till such time as the actual dues payable by the Petitioner Company was determined by the Debts Recovery Tribunal-III, Delhi, no proceedings could be continued under the SARFAESI Act, 2002, in respect of a nebulous figure. Mr. Andhyarujina submitted that in view of the One-Time Settlement, which had been arrived at between the Petitioner Company and the Punjab National Bank, the demand raised on behalf of IFCI Ltd. was entirely absurd since at best the said Company could claim what had been assigned to it by ACE. How a sum of Rs.15,01,28,752.00 could become Rs.1139.75 crores, remains unexplained and till such determination of the actual amount payable, proceedings under Section 13(2) of the SARFAESI Act, 2002, should not be allowed to be taken, since it would not be possible for IFCI Ltd. to determine as to what part of the Petitioner's property was liable to be taken possession of.

16. Mr. Andhyarujina submitted that it had also to be considered as to whether when the dues of the Punjab National Bank had been duly liquidated by ACE, its assignee could maintain the demand against the Petitioner Company.

17. Mr. Andhyarujina submitted that the steps taken by IFCI Ltd. pursuant to its demand notice dated 10th August, 2009 under Section 13(2) of the SARFAESI Act, 2002, were wholly illegal and were liable to be quashed.