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Secured creditor can file a winding up petition even after obtaining decree from DRT: SC

January 30, 2019[2019] 101 taxmann.com 454 (SC)
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CL : Secured creditor can file a winding up petition even after such secured creditor has obtained a decree from the Debts Recovery Tribunal ["DRT"] and a recovery certificate based thereon. Since winding up proceeding under the Companies Act, 1956, is not "for recovery of debts" due to banks, the bar contained in Section 18 read with Section 34 of the Recovery of Debts Act would not apply to winding up proceedings under the Companies Act ,1956

• Proceedings before the DRT, and winding up proceedings under the Companies Act, 1956, can carry on in parallel streams. That is a Debts Recovery Tribunal, acting under the Recovery of Debts Act, would be entitled to order sale, and sell the properties of the debtor, even of a company in liquidation, but only after giving notice to the Official Liquidator, or to the Liquidator appointed by the Company Court, and after hearing him.

• Under Section 439 of the Companies Act, 1956, a secured creditor' spetition for winding up is maintainable without any requirement of it having to give up or relinquish its security.

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