The SARFAESI Act, being a subsequent legislation, prevails over the Companies Act, and the sale under the SARFAESI Act is without the intervention of the Court. The remedies of the Official Liquidator with respect to such a sale are only before the DRT in accordance with Section 17 of the SARFAESI Act and not before the Company Court.

RAJIV SAHAI ENDLAW, J. :

1. Both appeals impugn the judgment dated 26th April, 2012 of the learned Company Judge in Company Applications No. 1947/2011 and 1948/2011 in Company Petition No. 359/2009 for winding up of M/s Megnostar Telecommunications Pvt. Ltd. (hereinafter referred to as the Company in Liquidation). Company Appeal No. 58/2012 was admitted for hearing and vide order dated 29.05.2012 which continues to be in force, the operation of the impugned order stayed. Subsequently, notice was issued in Company Appeal No. 62/2012 also. The counsel for the appellants in the two appeals and the counsels for the official liquidator have been heard.

2. The company in liquidation was the owner of Plot No. 1297, admeasuring 502.33 sq. yards situated at Sector MIE, Bahadurgah, Haryana together with the super structure thereon; the same was mortgaged in the year 2006 to the appellant M/s Kotak Mahindra Bank Ltd (hereinafter called the bank) to secure the financial assistance granted by the bank to the company in liquidation.

3. The bank, on 18.12.2008 issued notice under Section 13 (2) of The Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) to the company in liquidation. Upon the company in liquidation failing to comply therewith, the bank on 16.06.2010 took over possession of the mortgaged property. Thereafter, the bank on 23.07. 2011 published notices in the newspapers for auction and sale of the mortgaged property on 24.08.2011.

4. However, before the auction could be held, the Company Judge of this court in the company petition aforesaid filed by one Magicon Impex Pvt. Ltd. (respondent no.3 in Co.App. 62/2012), on 03.08.2011 appointed the Official Liquidator attached to this Court as the Provisional Liquidator of the company in liquidation.

5. Notwithstanding the aforesaid, the auction proceeded as scheduled on 24.08.2011 and the appellant in company appeal No. 62/2012, M/s Mohan Tractors (P) Ltd. (hereinafter called the auction purchaser) being the highest bidder for the sum of Rs.80,00,000/-, was agreed to be sold the mortgaged property. The physical possession and title deeds of the mortgaged property were also handed over to the auction purchaser on the same day.

6. The Official Liquidator attempted to take possession of the aforesaid property on 28th and 29th August, 2011 and finally took possession on 30.08.2011.

7. It was then that Co. Applications No. 1947 and 1948, both of 2011 were filed by the auction purchaser and the bank respectively seeking de-sealing of the property and restoration of the possession thereof to the auction purchaser. Vide order dated 21.09.2011, the learned Company Judge directed maintenance of status quo qua the property. The Official Liquidator filed reply in CA No. 1948/2011 averring, (i) that though the official liquidator had been appointed as the Provisional Liquidator on 3.8.2011, it was not associated with the auction held subsequently on 24.08.2011; (ii) that there was nothing to show whether the auction had been conducted in a fair manner; (iii) that admittedly the sale of the property is not complete as the sale certificate is not yet registered and thus the auction purchaser had not become the owner of the property and the ownership remained with company in liquidation; (iv) that no statement of affairs of the company in liquidation had been submitted till then and thus it was not possible for the Official Liquidator to ascertain the status of liabilities of the company in liquidation including towards the bank; and, (v) that the bank had also not placed on record the documents evidencing valid registration of the loan documents in accordance with Section 125 of the Companies Act, 1956. The bank filed a rejoinder to the said reply highlighting the documents evidencing action under Section 13 (4) and Section 14 (1) of the SARFAESI Act and pleading that it was not informed about the pendency of the company petition or