NARESH H. PATIL, J.

1. The appeal is directed against the order passed by the learned Single Judge of this Court in Official Assignee's Report No.4 of 2018 in Insolvency Petition No.2 of 2016 dated 4th December, 2018.

2. One Mr. Soumit Ranjan Jena stood guarantee to a loan availed of by one M/s. R.B.S. Commtrade Pvt. Ltd. from the appellant Bank. Mr. Soumit Jena accordingly executed an Agreement of Guarantee on 7th May 2013. On 14th June 2013, Mr. Jena deposited the title deeds in respect of the mortgaged property with the appellant Bank. Since the borrower of the appellant Bank defaulted in repayment, the account was declared as non-performing asset. The appellant called upon the insolvent to pay the outstanding balances. Appellant also revoked the facilities granted to the borrower and invoked personal guarantee. In Insolvency Petition No.2/2016, Mr. Jena was held to be insolvent. The Official Assignee thereafter filed reports in said insolvency proceedings.

3. The appellant filed a Notice of Motion bearing No.37/2018 in the Official Assignee's report in the Insolvency Petition to direct the official assignee to hand over possession and keys of the property which according to the appellant, were the mortgaged flats. Official Assignee filed a report for a direction to the appellant to deposit the title deeds. The appellant placed on record that the appellant is to proceed under Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for brevity 'the SARFAESI Act'). The learned Single Judge by the impugned order dated 4th December, 2018 rejected this Notice of Motion. Hence, the appellant Bank has come in appeal.

4. Ms.Nanghare, the learned Counsel appearing for appellant submits that under the Scheme of the SARFAESI Act, the appellant is entitled to enforce the security and proceed to take steps to sell the property mortgaged for recovering the dues of the Bank. The appellant thus is entitled to opt out of the insolvency proceedings for enforcing its rights under the SARFAESI Act and accordingly the appellant had intimated the official assignee which request was turned down. In support of the submissions the Counsel has placed reliance on the judgment of the Apex Court in the case of Pegasus Assets Reconstruction P.Ltd. V/s. M/s. Haryana Concast Limited & anr. Civil Appeal No.3646/2011 and decision of the Division Bench of Madras High Court in the case of Indian Bank vs. The Official Assignee O.S.A.Nos.130,131 and 172/2015 .

5. We have heard the learned Counsel for the parties. It is recorded in the order passed by the learned Single Judge that respondent insolvent was not present when the order was passed and that he is reported as absconding.

6. Mr. Sen, the learned Senior Counsel appearing for the Official Assignee submitted that there cannot be dispute about the legal position that secured creditor is entitled to enforce his secured interest by invoking provisions under the SARFAESI Act by opting out of Insolvency proceedings, but such secured creditor must involve the Official Assignee in all such steps. He also submitted that appellant will have to withdraw its claim lodged before Official Assignee.

7. The learned Single Judge in the impugned order has recorded that the appellant wishes to proceed independently and to stand outside insolvency proceedings. The learned Single Judge has, however, rejected his request on the ground that there is no equitable principle that will permit the appellant Bank to recover its claim in full and even substantially by sale of mortgaged properties to the detriment of the other creditors. The learned Single Judge directed the appellant to deposit the title deeds of the flats in question with the Official Assignee. The question that is raised before us is whether the appellant could be denied its right to stand outside the insolvency proceedings and recover his dues by taking recourse to SARFAESI Act.

8. The Presidency-Towns Insolvency Act,