The court established that secured creditors must be included in winding up proceedings to protect their interests in mortgaged properties.

ORDER :

(A.Y. Kogje, J.) :

1. This group of applications are filed by Rare Assest Reconstruction Ltd. Company seeking Leave to Appeal for challenging the various orders passed by the Company Court Judge in the respective Company applications by which the Company Applications of the private respondents came to be allowed.

2. The subject matter being common, all the applications are taken up for joint hearing and disposal. Civil Application No.591 of 2023 in F/O.J. Appeal No.6498 of 2023 in Company Application No.11 of 2022 in Company Petition No.179 of 2015 to be the lead matter.

3. The matter pertains to the order passed by the Company Court in application filed by the private respondents praying for releasing of their respective properties from the proceedings of liquidation mainly on the ground that the private respondents have respectively entered into Registered Sale-deed of the immovable properties, which belong to the Company under winding up. However, such Registered Sale-deed was much prior to the proceedings for winding up being initiated. This respective Company Applications came to be allowed by the Company Court by the respective impugned orders. As a result of which, the plots of land regarding which, transaction in the form of either Agreement to Sale or Sale-deed had taken place, were ordered to be released in favour of the private respondents.

4. The applicant, an asset reconstruction company, herein claims to be holding Mortgage-deed of the entire plots of land within which, respective plots of land are located and in connection with which, each private respondent being independent plot holder filed separate applications before the Company Court, but without making applicant as party, though interested, the impugned order has been passed and therefore, Leave to Appeal is prayed for.

5. Original proceedings being the Company Petition No.179 of 2015 were for winding up of one Shukan Corporation Pvt. Ltd.; respondent No.3 herein, filed by Daga Marketing Pvt. Ltd.; respondent No.2 herein under Section-433 and 434 of the Companies Act 1956 and the learned Company Judge by its order dated 17-08-2015 was pleased to order admitting the petition and appoint the Provisional Liquidator. Thereafter, accordingly, the respondent No.4- Company came under the winding up proceedings. The applicant herein has substituted Religare Finvest Ltd. by deed of assignment of debt.

5.1 Religare Finvest Ltd. had advanced the loan facility to the respondent No.3- Company to the tune of Rupees Twenty Five Crore and in order to secure the said loan registered mortgage was created on the property named as Project ‘Shukan Palace-III’. It appears that in the year 2014, the respondent No.3 was declared as ‘Non Performing Asset (NPA)’ by the then Religare Finvest Ltd.

6. Learned Senior Advocate for the applicant has submitted that based on the Mortgage-deed, an interest was created in favour of the applicant in connection with the property, which is mortgaged by the Company under winding up.

6.1 It is submitted that the respondent No.3 had executed registered Sale-deed in favour of the respondent Nos.4 to 7 on 30-01-2014 and thereafter, the Company Petition No.179 of 2015 came to be filed by the respondent No.2 seeking winding up of the respondent No.3; Shukan Corporation Pvt. Ltd. however, prior thereto the Mortgage deed was also executed.

6.2 It is submitted that the fact that the applicant had interest in the property arising out of the Mortgage-deed was brought to the notice of the Official Liquidator by letter dated 07-10-2021 and also brought to the notice Assignment Agreement dated 27-09-2021 with Religare Finvest Ltd. However, the Official Liquidator did not allow the applicant to be substituted.

6.3 It is submitted that the Official Liquidator thereafter filed the Report and pursuant to the order passed on such Report, claim was invited from all classes of creditor and the workman and in connection with this, an Advertisement was publishe