Ashis Kumar Chakraborty, J.

This is an appeal against an order passed by a learned Single Judge on June 19, 2014 admitting the winding up petition against the appellant company for a sum of Rs. 7,00,29,142/-. By the said order the learned Single Judge, however, granted opportunity to the appellant company for liquidating their dues to the respondent in twelve monthly installments ; in the event of failure one of such installment, there would be advertisement of the winding up application.

The essential facts of the case including the receipt of notice under Section 434 of the Companies Act, 1956 by the appellant company, is recorded in the order passed by the learned Single Judge. While assailing the aforesaid order of admission of winding up application, the appellant company could not dispute any finding of the learned Single Judge on the factual score, far less the appellant could raise any bona fide dispute with regard to the claim of the respondent. Mr. Ratnanko Banerjee, learned Senior Advocate assisted by Mr. Siddhartha Banerjee assailed the order under appeal only on points of law.

Mr. Banerjee first urged, the respondent was a secured creditor and it held various immovable properties of the appellant as security and as such the learned Single Judge should have exercised discretion not to admit the winding up petition. In support of such contention Mr. Banerjee relied on a decision of a learned Single Judge this Court in the case of Kotak Mahindra Bank Ltd. Vs. Eastern Spinning Mills and Industries Ltd reported in [2012] 175 Comp Cas 71 (Cal)]. In the said decision, after considering the relevant provisions contained in the Companies Act, 1956 particularly Sections 433, 434 and 439 thereof the learned Single Judge of this Court held, although the secured creditor was entitled to maintain an application for winding up of its debtor Company under the Companies Act, 1956 the Court had a discretion not to admit the winding up application, if the security of the secured creditor was efficacious and adequate. The second ground of challenge urged by Mr. Banerjee touches the jurisdiction of the Company Court to deal with a winding up application filed by a bank or non-banking financial institution having a remedy to take recourse before the Debt Recovery Tribunal for realization of debts. According to Mr. Banerjee, in view of express provision contained in Section 17 of the Recovery of Debts due to Bank and Financial Institution Act, 1993 (hereinafter referred to as the RDB Act) it is the Debt Recovery Tribunal that has exclusive jurisdiction to entertain, try and adjudicate all claims of any bank or financial institution against its borrower, including the borrower Company bank and as such the Company Court does not have the jurisdiction to entertain any winding up application of any bank or financial institution. In support of such contention, Mr. Banerjee placed reliance on the decision of the Supreme Court in the case of Allahabad Bank vs. Canara Bank and Anr. reported in (2008) 4 SCC 406.

The learned Judge considered all the relevant records and pleadings of the parties and found, the securities held by the petitioning creditor were subject to the charge held by other creditors of the company and even if the petitioning creditor was directed to sell its securities, the petitioning creditor would not be able to sell the securities without the consent of the other charge holders. Elaborating his first ground of challenge that in the case of winding up application filed by the secured creditor, Mr. Banerjee first relied on the said decision of the learned Single Judge in the case of Kotak Mahindra Bank (Supra). He, however, pointed out, in appeal, the Division Bench of this Court, by an order dated February 13, 2013 set aside the said decision of the learned Single Judge which has been reported in (2013) 177 Comp. Cas 15 (Cal). On an enquiry from us, Mr. Banerjee further informed us the decision of the Division