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TMI Blog2021 (12) TMI 1329X X X X Extracts X X X X X X X X Extracts X X X X ..... d order was in consonance with the objective of the IBC and falls in the line of inherent power exercised by this Tribunal. In the present matter in hand, it is to be noted that the notice under Section 13(2) of the SARFAESI Act was issued by the Financial Creditor i.e. Yes Bank on 29th July 2021 to the Corporate Debtor, accordingly, the statutory period of 60 days was to expire on 28th September 2021, but the notice of symbolic possession was given on 10th September 2021, and the symbolic possession was taken merely within 42 days without completing the statutory period of 60 days as laid down under the 13(2) SARFAESI Act. Thus, the above said hurry up acts/omissions on the part of Yes Bank and Corporate Debtor indicates that there might be some collusion between them, in order to help the Corporate Debtor to redeem the property. Further, in the present matter, the present petitioner is one of the Financial Creditor and the charge was also duly created in its favour also by the Corporate Debtor. It is settled principal of law, while creating charge on a property, only an intention is required to be seen. Once, the said intention is reflected from the act conduct of the Cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orporate Debtor as well as the another Financial Creditor of the Corporate Debtor being Yes Bank. Learned Counsel for the Corporate Debtor accepts notice and makes a statement that as on date, the Corporate Debtor is in possession of the immovable property assets of the company. Issue notice to Yes Bank. Learned Counsel for the Corporate Debtor also undertakes to file reply within two weeks. In the Meanwhile, both the respondents should maintain status quo with respect to assets of the company. The said application and main IB petition is still pending before this Bench. 5. Now, the applicant has filed present application to vacate the interim stay by this Adjudicating Authority on 30.09.2021, on the ground that the stay was granted without giving reasonable opportunity as the copy of application or notice of hearing was not served upon the applicant, which violates the rules of natural justice. 6. It is also claimed by the applicant that the stay order dated 30.09.2020 violates the statutory rights the of applicant in terms of SARFAESI Act, which could not be adjudicated by this Adjudicating Authority while hearing Section 7 application. Since no order Under Section 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Section 238 of the Code. The respondent has also pointed out that the applicant has filed WP (C) no. 11572/2021 titled as Yes Bank Vs. Dewan Housing Finance Corporation and Anr. alongwith CM. Appl. 35687/2021 for relief from the stay order dated 30.09.2021 before the Hon'ble High Court of Delhi, which was dismissed by Hon'ble High Court vide order dated 08.10.2021 observing that it is the petitioner's (Appellant) own case that it has already taken possession of the subject properties and therefore, merely it has been directed to maintain status quo, no grave or irreparable loss is likely to be caused to the petitioner (Appellant) if the direction to maintain status quo continues further. 11. Learned Counsel for the applicant Yes Bank vehemently contended that the order of status quo has been granted by this Tribunal without hearing the parties i.e. Yes Bank. Even, Yes Bank was not impleaded as arrayed of the respondent in the main petition, therefore, order of 'status-qua' is not at all to be granted. Accordingly, the same is liable to be set aside. Further, it is also argued that the property-in-question, which was duly mortgaged and charged with the Ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the same has not been re-paid by the Corporate Debtor. Hence, the present petition under Section 7 of the IBC has been filed. It is further contended that there was an active collusion between the Corporate Debtor as well as Yes Bank, as the present petition under Section 7 of IBC was filed on 26th August 2021. Although, the notice under Section 13(2) was issued by the Yes Bank on 29th July 2021 and 60 days' time was given. Period of 60 days was to be expired on 28th September 2021, but prior to that, the notice for taking symbolic possession was issued under Section 13(4) of the SARFAESI Act on 10th September 2021, therefore, all the actions of the Yes Bank were in violation of the SARFAESI Act as notice under Section 13(2) was to be expired on 28th September 2021. Symbolic possession has been taken merely within 42 days, which was absolutely violation of the SARFAESI Act and was due to the collusion between the Corporate Debtor as well as the Yes Bank. 14. Learned Counsel for the DHFL further contended that the mere that charge has been registered, the same does not create absolute right in favour of the Yes Bank, that too, when the property-in-question was mortgaged wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king of physical possession under the SARFAESI Act also does not create any absolute right and title in the favour of the Yes Bank. In view of the above said submissions, Learned Counsel for the respondent No. 1 i.e. DHFL prayed that the application being false and frivolous may kindly be dismissed with costs. 17. Further, Learned Counsel for the Corporate Debtor argued that this Tribunal has limited residuary power under Section 60 (5) (c) of the IBC Code, therefore, it cannot exercise such power, which the IBC specifically not provided and relied upon Gujarat Urja Vikas Nigam Ltd. Vs. Amit Gupta 2021 SCC OnLine SC 194 and contended that the order of injunction cannot be passed against Yes Bank and Yes Bank has rightly taken the actual and physical possession of the property after due compliance of notice under Section 13(2) and 13(4) of the SARFAESI Act. Accordingly, Learned Counsel for the Corporate Debtor vehemently contended that Yes Bank being actually in physical possession, the petition under Section 7 cannot be maintained and the respondent No. 1 has no right, title and interest in the same. Further, it is contended that no case has been made out in the petition unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt that on day the Corporate Debtor was in the possession of the immoveable property of the assets of the company. Although, it was ordered that notice was to be issued to Yes Bank, but Learned Counsel for the Corporate Debtor categorically stated, the possession of the immoveable property has not been transferred to the other person . Thus, the said order was passed in the very presence of the Learned Counsel for the Corporate Debtor, who suffered a specific statement that the Corporate Debtor was still in the possession of the property. Hence, it could not be stated that said order was passed in the absence of any of the party. Moreover, only symbolic possession may be said to be taken and physical possession was still with the Corporate Debtor. 20. Although, on the behalf of the Yes Bank, it is being stated that Yes Bank has taken the possession of property in question under SARFAESI Act and from that very date, Yes Bank had become the owner of property-in-question. In this context, before proceeding further, it would be appropriate to go through Section 13(2) and Section 13(4) of SARFAESI Act, which are as under: 13(2) Where any borrower, who is under a liability to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. Thus, the above said hurry up acts/omissions on the part of Yes Bank and Corporate Debtor indicates that there might be some collusion between them, in order to help the Corporate Debtor to redeem the property. In the matter of Mathew Varghese V.M. Amritha Kumar and Others (supra), the Hon'ble Apex Court categorically held that the secured assets can be redeemed by the Corporate Debtor at any time before the execution of conveyance and registration of transfer of mortgage interest by registered instrument. Thus, the purpose and object of this Tribunal while passing the order dated 30th September 2021 was only to protect the property in question and to secure rights of all the creditors and also of Corporate Debtor. 22. Further, in the present matter, the present petitioner is one of the Financial Creditor and the charge was also duly created in its favour also by the Corporate Debtor. It is settled principal of law, while creating charge on a property, only an intention is required to be seen. Once, the said intention is reflected from the act conduct of the Corporate Debtor, it is to be presumed that the charge has been duly created in the favour of the Financial ..... X X X X Extracts X X X X X X X X Extracts X X X X
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