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Dhir & Dhir acts on first management take-over under SARFAESI

Varun Marwah

Amid all the hype and popularity of taking over the management of the affairs of the Corporate Debtor under the Insolvency And Bankruptcy Code, 2016 (IBC), a NAVRATNA enterprise has become the first company in India to take over management of a debtor under provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI).

Rural Electrification Corporation Ltd. (REC), a NAVRATNA Central Public Sector Enterprise established under the Ministry of Power of Government of India, has become the first company in India to take over management under the SARFAESI.

REC has initiated action under Section 13(4)(b) of the SARFAESI, which allows the creditor to take over the management of the business of debtor “including the right to transfer by way of lease, assignment or sale for realising the secured asset”. The debtor company is Facor Power Limited (Facor), with a total debt due to the tune of approx. Rs. 780 Crores

Prior to taking over the management, REC classified Facor as a Non-Performing Asset (NPA) in September, 2015, and issued a notice demanding repayment of the debt due  as is required under Section 13(2) of the SARFAESI.  Thereafter, REC took over the possession of the secured assets of the Facor under Section 13(4) of the SARFAESI and finally resorted to taking over the management. The company now will be managed and run by REC until its dues stands cleared.

The difference between an action under IBC and SARFAESI is that the IBC provides for a collective action, which can be triggered by a financial or an operational creditor whereas the SARFAESI is an individual recovery action undertaken only by a secured creditor for enforcing a specific contract or foreclosing one or more specific security interest(s).

REC was advised and assisted by Dhir & Dhir Associates, who throughout provided all the legal support/assistance /advice for initiating the entire action under the SARFAESI Act.

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