NDLI: Swaraj Infrastructure Pvt. Ltd. Vs. Kotak Mahindra Bank Ltd.

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	434(1)(a) and (1)(b) Companies Act 1956 winding up 441(2) and 529 Winding up Recovery of Debts29 ss. 439
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Act(s) Referred	Companies Act, 1956 (1 of 1956) Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) Companies Act, 2013 (18 of 2013)
Case(s) Referred	Referred Case 0 Referred Case 1 Referred Case 2 Referred Case 3 Referred Case 4
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Dismissed
Headnote	Companies Act, 1956: ss. 439, 434(1)(a) and (1)(b), 441(2) and 529 – Winding up petition – By the secured creditor/respondent-Bank, after obtaining decree from Debts Recovery Tribunal and a recovery certificate based thereon – Maintainability of the petition – Plea of debtor companies inter alia that the petition was barred by provisions in s.17 r/w. s.18 of Recovery of Debts Act; that the creditor must either relinquish its security and stand in line in winding up proceeding or realize its security outside the winding up proceeding; and that in the present case s.434(1)(b) would be attracted and not s.434(1)(a) – On appeal, held: Winding up proceeding is not a proceeding for realization of debts and therefore would not be covered by the language of s.17 r/w. ss.18 and s.34 of Debts Recovery Act – u/s. 439, a secured creditor’s petition for winding up is maintainable without any requirement for relinquishing its security – In view of s.529(1)(c), s.47 would be applicable and not s.9(2) of the Provincial Insolvency Act and hence winding up petition cannot be deemed to commence at the time of presentation of the petition – Reliance on s.441(2) by the debtors, is misplaced – At the stage at which the winding up petition was filed, the same could not have been filed u/s.434(1)(b) and hence s.434(1)(b) was inapplicable – Winding up petition was maintainable – Recovery of Debts Due to Banks and Financial Institutions Act, 1993 – ss.17, 18 and 34 – Provincial Insolvency Act, 1920 – ss.9(2) and 47. ss.434(1)(a) and (1)(b) – Applicability of the provisions – Held: Applicability of sub-s.(b) of s.434(1) does not mean that provision under sub-clause (a) of s.434(1) shall cease to be applicable – Each one of the sub-clauses of s.434(1) are not mutually exclusive.
Judge	Hon'ble Mr. Justice R.F. Nariman
Neutral Citation	2019 INSC 108
Petitioner	Swaraj Infrastructure Pvt. Ltd.
Respondent	Kotak Mahindra Bank Ltd.
SCR	[2019] 1 S.C.R. 682
Judgement Date	2019-01-29
Case Number	1291

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