ORDER : 1. Invoking the jurisdiction of this Court under Sections 433 and 434 of the Companies Act, 1956, the petitioner herein – The Greater Bombay Co-operative Bank Limited has filed this petition stating inter alia that the petitioner Bank is a Scheduled Co-operative Bank registered under the Maharashtra Co-operative Societies Act, 1960 and having its registered office at the address mentioned in the title of the petition and carrying on its banking business, whereas the respondent is a company registered under the provisions of the Companies Act, 1956 and having its registered office at H.No.213, Station Road, Mahasamund and engaged in the business of manufacturing and exporting of Soya DOC production of Soya Oil (Solvent Extraction Plant). 2. The petitioner had sanctioned, advanced and disbursed to the respondent a cash credit ad hoc limit of Rs.50 lakhs on 2-1-2010 vide sanction letter dated 26-6-2010 and in addition to Rs.5 crores advanced vide sanction letter dated 31-3-2010 in consortium with State Bank of India under a cash credit working Capital Consortium Agreement dated 12-1-2009, entered into between the respondent and State Bank of India as a lead Bank and the petitioner. The respondent has availed and utilised the facilities granted to it and the sanction was also accepted by the respondent Company. 3. It is further pleaded that the respondent Company has accepted the terms and conditions under the aforesaid sanction letters and also executed a Joint Deed of Hypothecation by creating a first pari-passu charge created in favour of State Bank of India and executed all the security documents and all the guarantors have executed personal guarantees by accepting the terms and conditions without demur and protest. All other documents have been executed by the respondent Company. Charge of various assets has also been executed by the respondent Company. 4. It is also pleaded that the respondent Company has failed to serve the account by way of payment of principal or interest for a period of 90 days hence, the account was declared as non performing asset on 30-5-2011. Charge of various assets has also been executed by the respondent Company. 4. It is also pleaded that the respondent Company has failed to serve the account by way of payment of principal or interest for a period of 90 days hence, the account was declared as non performing asset on 30-5-2011. Notice under Section 13 (2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, 'the SARFAESI Act') was issued on 29-7-2011 for recovery of ad hoc cash credit limit of Rs.50 lakhs, as the petitioner had failed and neglected to repay the loan amount and also notices were issued under Section 13 (4) of the SARFAESI Act upon the respondent for taking possession of the property charges to the petitioner. After grant of revenue recovery certificate granted by the competent authority, the total liability is Rs.5,78,72,146/- which the respondent Company has audited balance sheet for the year ending on 31-3- 2010 to be Rs.5,41,41,358/-. It was further pleaded that the respondent is not doing the business so as to be able to repay the outstanding dues of the petitioner and the respondent has become commercially insolvent. Looking to the financial position, if the respondent Company is allowed to run, the financial position of the respondent will create more debtors in the market. On 29-10-2014, legal notice has been served upon the respondent which has been returned “unclaimed” and as such, the respondent is liable to pay Rs.9,23,52,768-67. Despite demands, the respondent Company has failed and neglected to pay the amount. Therefore, the petition be admitted for winding up of the respondent Company. 5. The respondent Company has entered into appearance and opposed the prayer of the petitioner stating that the petitioner Bank has also resorted to the provisions of the SARFAESI Act and as such, the SARFAESI Act would prevail over the provisions of the Companies Act and the company petition as framed and filed is not maintainable in law. State Bank of India being the lead bank, the petitioner Bank is not entitled to institute the present company petition. Therefore, the present petition as framed and filed is not maintainable. The respondent Company is facing financial hardship and it is not in operation. State Bank of India being the lead bank, the petitioner Bank is not entitled to institute the present company petition. Therefore, the present petition as framed and filed is not maintainable. The respondent Company is facing financial hardship and it is not in operation. The petition for winding up cannot be allowed to be converted into a suit for recovery and the petitioner must resort to the ordinary remedy of recovering the amount, if any, before the jurisdictional civil court, as such, the company petition deserves to be dismissed, as it is does not deserve to be admitted. 6. In rejoinder submission, the petitioner contends that by virtue of the provisions contained in Section 37 of the SARFAESI Act, the remedy under the SARFAESI Act is in addition to and not in derogation of the remedies available under the provisions of the Companies Act, 1956 and therefore the remedy of winding up is not barred on account of invocation of jurisdiction under the provisions of the SARFAESI Act. Therefore, the objection deserves to be rejected. 7. Mr. Ankit Singhal, learned counsel appearing for the respondent, opening the argument would raise preliminary objection and submit that since the petitioner Bank has already resorted to the measures provided under the SARFAESI Act, therefore, the company petition as framed and filed under Section 433 read with Section 434 of the Companies Act, 1956, would not be maintainable and as such, it be dismissed as not maintainable and he would place reliance upon a decision of the Supreme Court in the matter of Pegasus Assets Reconstruction P. Ltd. v. M/s. Haryana Concast Limited and another, AIR 2016 SC 494 . 8. Mr. Rishabh Shah, learned counsel appearing for the petitioner, replying to the preliminary contention would submit that by virtue of Section 37 of the SARFAESI Act, the provisions of the said Act and the rules made there under shall be in addition to, and not in derogation of, the provisions of the Companies Act and therefore the objection raised by the respondent deserves to be overruled. 9. I have heard learned counsel for the parties on the question of preliminary objection. 10. It would be expedient to notice Section 37 of the SARFAESI Act which reads as under: - “37. 9. I have heard learned counsel for the parties on the question of preliminary objection. 10. It would be expedient to notice Section 37 of the SARFAESI Act which reads as under: - “37. Application of other laws not barred.—The provisions of this Act or the rules made there under shall be in addition to, and not in derogation of, the Companies Act, 1956 (1 of 1956), the Securities Contracts (Regulation) Act, 1956 (42 of 1956), the Securities and Exchange Board of India Act, 1992 (15 of 1992), the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) or any other law for the time being in force.” 11. A focused glance of the aforesaid provision would clearly show that the provisions of the SARFAESI Act as well as the rules made there under shall be in addition to and not in derogation of the Companies Act, 1956. The expressions “in addition to” and “not in derogation of” have been considered by the Supreme Court in the matter of P.C. Joshi and another v. The State of Uttar Pradesh, AIR 1961 SC 387 with reference to Section 198B of the CrPC. Their Lordships have held that Section 198 of the CrPC in which such phrases “in addition to” and “not in derogation of” have been employed, are an additional provision and is not intended to take away the right of a person aggrieved even if he belongs to the specified classes and the offence is in respect of his conduct in the discharge of his public functions to file a complaint in the manner provided by Section 198. Their Lordships pertinently observed as under:- “The expressions, "in addition to" and "not in derogation of" mean the same thing – that S. 198B is an additional provision and is not intended to take away the right of a person aggrieved even if he belongs to the specified classes and the offence is in respect of his conduct in the discharge of his public functions to file a complaint in the manner provided by s. 198.” Derogation" means, taking away, lessening or impairing the authority, position or dignity, and the context in which sub-s. (13) occurs clearly shows that the provisions of S. 198B do not impair the remedy provided by S. 198. It means that by S. 198B, the right which an aggrieved person has to file a complaint before a Magistrate under S. 198 for the offence of defamation even if the aggrieved person belongs to the specified classes and the defamation is in respect of his conduct in the discharge of his public functions, is not taken away or impaired. If sub-s. (13) be construed as meaning that the provisions of S. 198B are to be read as supplementary to those of S. 198, the non-obstante clause with which sub-s. (1) of S. 198B commences is rendered wholly sterile, and unless the context compels such an interpretation, the court will not be justified in adopting it.” 12. The expressions “in addition to” and “not in derogation of” are a legislative device and they have been used by the legislature in their wisdom in some of the statutes. Section 3 of the Consumer Protection Act, 1986 also provides such phrases “in addition to” and “not in derogation of”. Their Lordships of the Supreme Court in umpteen number of cases have held that where the phrases “in addition to” and “not in derogation of” are used, that would be an additional remedy. Their Lordships of the Supreme Court while dealing with Section 3 of the Consumer Protection Act, 1986, which provides pari materia provision held that such a provision is an additional remedy and availability of other statutory remedies would not bar. 13.The Supreme Court in the matter of Secretary, Thirumurgan Cooperative Agricultural Credit Society v. M. Lalitha (Dead) through LRs and others, (2004) 1 SCC 305 has held as under:- “12. As per Section 3 of the Act, as already stated above, the provisions of the Act shall be in addition to and not in derogation of any other provisions of any other law for the time being in force. Having due regard to the scheme of the Act and purpose sought to be achieved to protect the interest of the consumers better, the provisions are to be interpreted broadly, positively and purposefully in the context of the present case to give meaning to additional/extended jurisdiction, particularly when Section 3 seeks to provide remedy under the Act in addition to other remedies provided under other Acts unless there is a clear bar. *** 14. *** 14. In Fair Air Engineers (P) Ltd. v. N.K. Modi, (1996) 6 SCC 385 the Supreme Court, after referring to Lucknow Development Authority case, Lucknow Development Authority v. M.K. Gupta, (1994) 1 SCC 243 , held that the provisions of the Act are to be construed widely to give effect to the object and purpose of the Act. It went on to say that: “It is seen that Section 3 envisages that the provisions of the Act are in addition to and are not in derogation of any other law in force. It is true, as rightly contended by Shri Suri, that the words “in derogation of the provisions of any other law for the time being in force” would be given proper meaning and effect and if the complaint is not stayed and the parties are not relegated to the arbitration, the Act purports to operate in derogation of the provisions of the Arbitration Act. Prima facie, the contention appears to be plausible but on construction and conspectus of the provisions of the Act we think that the contention is not well founded. Parliament is aware of the provisions of the Arbitration Act and the Contract Act, 1872 and the consequential remedy available under Section 9 of the Code of Civil Procedure, i.e., to avail of right of civil action in a competent court of civil jurisdiction. Nonetheless, the Act provides the additional remedy.” 14. Further dealing with the jurisdiction of the forums under the 1986 Act in para 16 the Supreme Court has stated thus: “16. It would, therefore, be clear that the legislature intended to provide a remedy in addition to the consentient arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the Code of Civil Procedure. Thereby, as seen, Section 34 of the Act does not confer an automatic right nor create an automatic embargo on the exercise of the power by the judicial authority under the Act. It is a matter of discretion. Thereby, as seen, Section 34 of the Act does not confer an automatic right nor create an automatic embargo on the exercise of the power by the judicial authority under the Act. It is a matter of discretion. Considered from this perspective, we hold that though the District Forum, State Commission and National Commission are judicial authorities, for the purpose of Section 34 of the Arbitration Act, in view of the object of the Act and by operation of Section 3 thereof, we are of the considered view that it would be appropriate that these forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceeding pursuant to a contract entered into between the parties. The reason is that the Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action unless the forums on their own and on the peculiar facts and circumstances of a particular case, come to the conclusion that the appropriate forum for adjudication of the disputes would be otherwise than those given in the Act.” 15. Their Lordships finally held as under:- “20. Thus, having regard to all aspects, we are of the view that the National Commission was right in holding that the view taken by the State Commission that the provisions under the Act relating to reference of disputes to arbitration shall prevail over the provisions of the 1986 Act is incorrect and untenable. ...” 16.In the matter of Haryana Telecom Ltd. v. Sterlite Industries (India) Ltd., (1999) 5 SCC 688 , winding up petition was filed by a creditor before the High Court and the Company moved an application under Section 8 of the Arbitration and Conciliation Act, 1996, stating inter alia that the High Court should refer the matter to arbitration. The contention was rejected by the High Court and when the matter was taken-up before the Supreme Court, the Supreme Court pointed out that “The claim in a petition for winding up is not for money. The petition filed under the Companies Act would be to the effect, in a matter like this, that the Company has become commercially insolvent and, therefore, should be wound up. The power to order winding up of a Company is contained under the Companies Act and is conferred on the Court.” 17. The petition filed under the Companies Act would be to the effect, in a matter like this, that the Company has become commercially insolvent and, therefore, should be wound up. The power to order winding up of a Company is contained under the Companies Act and is conferred on the Court.” 17. The Supreme Court in the matter of Sri Vedagiri Lakshmi Narasimha Swami Temple v. Induru Pattabhirami Reddi, AIR 1967 SC 781 has authoritatively held that in every situation where the Legislature has excluded jurisdiction of the Civil Court, the exclusion has to be applied only to the extent the Legislature intends and not a wit beyond it. It was further observed that “Any other construction would lead to an incongruity, namely, there will be a vacuum in many areas not covered by the Act and the general remedies would be displaced without replacing them by new remedies”. 18. Likewise, the Supreme Court in the matter of Allahabad Bank v. Canara Bank and another, (2000) 4 SCC 406 held that the Companies Act, 1956 and the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 can both be treated as special laws and the principle is that, where there are two special laws, the latter will normally prevail over the former, if there is a provision in the latter special Act giving it overriding effect. 19. The Bombay High Court in the matter of Viral Filaments Ltd., Mumbai v. Indusind Bank Ltd., Mumbai, [2003] 113 CompCas 85 (Bom) has clearly held that the admission of petition for winding up under Section 433(e) of the Companies Act, 1956 need not be preceded by an adjudicated liability of the company. It proceeds upon the inability of the company to pay its debts. Section 434(1)(a) prescribes a statutory presumption of such inability on the part of the Company if the conditions prescribed therein are fulfilled. Thus, the Company Court had nothing but the statutory presumption to fall upon at the time of admission of the company petition. 20. Thus, the objection raised by the respondent that since the petitioner Bank has resorted to the provisions of the SARFAESI Act, the petition is not maintainable, deserves to be rejected, as the SARFAESI Act is in addition to and not in derogation of the provisions of the Companies Act, 1956, in view of Section 37 of the SARFAESI Act. 21. Thus, the objection raised by the respondent that since the petitioner Bank has resorted to the provisions of the SARFAESI Act, the petition is not maintainable, deserves to be rejected, as the SARFAESI Act is in addition to and not in derogation of the provisions of the Companies Act, 1956, in view of Section 37 of the SARFAESI Act. 21. This would bring me to the next submission of the petitioner Bank that the respondent Company has become commercially insolvent and is not in operation and, therefore, it is unable to pay the debts and as such it is a fit case for admitting the petition for winding up of the respondent Company. The respondent has not disputed the facts seriously and simply contested that the alleged debt of the respondent Company is secured by way of creation of equitable mortgage of their secured assets in favour of the petitioner Bank along with the lead bank i.e. the State Bank of India and therefore the petition for winding up is not maintainable and the respondent has not become commercially insolvent. 22. It is not in dispute that the respondent Company is not in operation and is not able to meet its current demands and it is the case of the respondent Company that the respondent Company is trying its best to revive the Company, however, due to market conditions and financial crisis, the Company is facing problem in reviving and since the debts of the petitioner Bank are secured, therefore, it cannot be said that the respondent Company has become commercially insolvent. After hearing counsel for the parties, considering the evidence available on record and pleadings of the parties and also considering the statutory notice served to the respondent Company and its failure to pay the amount, along with material brought on record, I am of the considered opinion that it is a fit case where the petition should be admitted for winding up. 23. List it for further orders on 28-7-2017.