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2022 (6) TMI 1216 - Tri - Insolvency and BankruptcySeeking handover possession of four Apartments during the period when CIRP was going on - whether during the period of CIRP, the relief sought by the applicant to handover possession of four Apartments to the applicant can be allowed? - HELD THAT - A reading of Section 43(2)(b) of the IBC, 2016, would make it clear that if the prayer of the applicant is allowed which will be in the nature of transferring/alienating or disposing off the Corporate Debtor any of its assets or any legal rights or beneficial interest therein. This will result in change in the status of the assets of the Corporate Debtor after the commencement of Insolvency Resolution Process. The transfer has the effect of putting such Creditor or surety or a guarantor in a beneficial position than it would have been in the event of a distribution of assets being made in accordance with Section 53. Moreover, while admitting the application moratorium has been ordered under Section 14 of the IBC. The RP cannot handover the possession of the four Apartments to the applicant. The applicant is to wait till the CIRP is concluded - Application dismissed.
Issues:
- Application filed under Section 60(5) of IBC, 2016 by a Financial Creditor who is a "home buyer" seeking possession of four Residential Apartments from the Corporate Debtor. - Claim of the Financial Creditor admitted by the Interim Resolution Professional (IRP) under IBC. - Dispute regarding possession of the Apartments during the Corporate Insolvency Resolution Process (CIRP). - Interpretation of Section 43(2)(b) of the IBC, 2016 in relation to the relief sought by the applicant. Analysis: 1. The applicant, a Financial Creditor, filed an application under Section 60(5) of the IBC, 2016 seeking possession of four Residential Apartments from the Corporate Debtor, with whom agreements were made for construction and delivery. The applicant had previously filed a complaint against the Corporate Debtor, which was allowed by the Kerala State Consumer Disputes Redressal Commission, directing completion of construction and delivery within a specified time frame. 2. The IRP admitted the applicant's claim under IBC and directed the submission of separate claims for each Apartment. The applicant contended that he has a statutory charge on the Apartments due to the monies paid and cited relevant legal provisions and past judgments to support his claim for possession. 3. The respondent/RP opposed the relief sought by the applicant, stating that the request was beyond the provisions of the IBC. The RP highlighted the restrictions imposed during CIRP, prohibiting actions that may benefit specific creditors and emphasized the equal opportunity principle for all creditors in insolvency resolution. 4. The RP argued that allowing possession to the applicant during CIRP would conflict with IBC provisions, specifically Section 43(2)(b), which aims to prevent preferential treatment of creditors. The Tribunal, after considering the arguments and legal provisions, concluded that transferring possession to the applicant would alter the Corporate Debtor's assets' status and put the applicant in a beneficial position, contrary to the insolvency distribution principles outlined in Section 53. 5. Therefore, the Tribunal dismissed the applicant's application, emphasizing that the possession of the Apartments cannot be handed over during CIRP. The decision was based on the interpretation of Section 43(2)(b) of the IBC and the need to maintain the integrity of the insolvency resolution process until its conclusion. This detailed analysis covers the key issues raised in the judgment, providing a comprehensive understanding of the legal reasoning and decisions made by the Tribunal.
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