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TMI Blog2017 (7) TMI 1068X X X X Extracts X X X X X X X X Extracts X X X X ..... he ownership of the Corporate Debtor. As a result, the Order of the Hon'ble Court directing the Court Commissioner to take over the possession shall not fall within the clutches of Moratorium. Even otherwise, the provisions of The Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (the SARFAESI Act) may be having different criteria for enforcement of recovery of outstanding debt, which is not the subject matter of this Bench. Before we part with it is necessary to clarify my humble view that The SARFAESI Act may come within the ambits of Moratorium if an action is to foreclose or to recover or to create any interest in respect of the property belonged to or owned by a Corporate Debtor, otherwise not. To conclude the Application under Section 10 of The Code is hereby "Admitted" subject to the exception as carved out supra. The consequential directions shall be that the provisions of Section 14 of The Code i.e. "Moratorium" shall come into operation. Next, the proposed name of Interim Resolution Professional i.e. (Page 4 name) is hereby approved. The IRP shall take appropriate action such as Public Announcement etc. so that the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loor in the building known as Autumn Grove situated at Plot No. H-D5 of Sector III, Lokhandwala Township, Akurli Road, Kandivaii (East), Mumbai. (b) Residential flat admeasuring about 224 sq. ft. carpet area bearing Flat No. 104 on the 1st floor in the building known as Autumn Grove situated at Plot No. H-D5 of Sector III, Lokhandwala Township, Akurii Road, Kandivali (East), Mumbai. (c) Residential flat admeasuring about 1165 sq. ft. carpet area bearing Flat No. 904, C Wing on the 9th floor in the building known as Whispering Palms Building No. 3 Cooperative Housing Society Limited situated at Lokhandwala Complex, Akurll Road, Kandivali (East), Mumbai. 4. ARGUMENTS:- From the side of the Applicant/Debtor Learned Representative has pleaded that vide an Order of the Debt Recovery Tribunal (Securitisation Application No. 2015/2017) on an Application by one Dr. Suresh G. Vijan (I.A. No. 813/2017) Order dated 7th June, 2017 the said Application of the Tenant was rejected. As a result an Order of the Chief Metropolitan Magistrate, Esplanade, Mumbai (Case No. 384/SA/2014) dated 11.04.2007 shall come into operation through which a Court Commissioner is appointed to take ov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon etc. thus needs no elaborate discussion. Prima facie it is required to examine the basic facts only to ascertain whether the Application under consideration deserves Admission within the parameters of Section 10 of I BP Code. For ready reference Section 10 of The Code is reproduced hereinbelow:- 10. Initiation of corporate insolvency resolution process by corporate applicant: (1) Where a corporate debtor has committed a default, a corporate applicant thereof may file an application for initiating corporate insolvency resolution process with the Adjudicating Authority. (2) The application under sub-section (1) shall be filed in such form, containing such particulars and in such manner and accompanied with such fee as may be prescribed. (3) The corporate applicant shall, along with the application furnish the information relating to- (a) its books of account and such other documents relating to such period as may be specified; and (b) the resolution professional proposed to be appointed as an interim resolution professional. (4) The Adjudicating Authority shall, within a period of fourteen days of the receipt of the applicant, by an orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present. There is no evidence on record to indicate that how the interest of the Sundry Creditors has been safe guarded. This aspect can be examined by the Professional to be appointed on Admission of this Application. This is the Second reason to allow Admission of this Application . 7.4 On examination of the Balance Sheet a huge contrast is apparent. On left hand side of the Balance Sheet the liability is stated to be approximately ₹ 5,30,00,000/-, but on the right hand side the Fixed Assets, FDRs, Bank Guarantee are significantly insufficient. The Insolvency Professional thus can iron out all these creases. The details of Reserves and Surplus need due examination. The possibility of recovery from Sundry Debtor is also to be explored. Both these figures, i.e. Reserves as also Sundry Debtor, are substantial in nature which require due consideration hence this is the third reason to allow Admission of this Application. 7.5 A Profit and Loss Account as on 31st March, 2017 has also been annexed reflecting total Sales of the Financial Year 2016-17 was to the tune of ₹ 7,68,66,346/-. Although a 'loss' has been reflected in P L A/c but it is very natura ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002); (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. 2. ...... 3. ..... 4. ...... 8.1 On careful reading I have noticed that the term its is significant. The plain language of the Section is that on the commencement of the Insolvency process the 'Moratorium' shall be declared for prohibiting any action to recover or enforce any security interest created by the Corporate Debtor in respect of its property. Relevant section which needs in-depth examination is Section 14(1)(c) of The Code. There are recognised canons of interpretation. Language of the Statute should be read as it existed. This is a trite law that no word can be added or substituted or deleted from the enacted Code duly legislated. Every word is to be read and interpreted as it exists in the statute with the natural meaning attached to the word. Rather in this Section the language is so simple that there is no scope even to supply 'casus omissus'. I hasten to add that the doctrine of 'Noscitur a Sociis&# ..... X X X X Extracts X X X X X X X X Extracts X X X X
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