9911796707
TMI Blog2021 (12) TMI 1329X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent No. 2, seeking following reliefs: a) Restraining the Corporate Debtor and applicant from selling, alienating and creating any 3rd party rights on the assets of the Corporate Debtor till the adjudication of main IB petition no. 472/ND/2019. b) Ad-interim injunction on operation of possession notice dated 10.09.2021 issued by applicant under Section 13 (4) of SARFAESI Act. c) Interim injunction on the operation of possession notice till the pendency of the present application. The aforementioned IA was listed for hearing on 30.09.2021 and following order was passed: "Application filed by the Financial Creditor seeking ad interim relief against the Corporate 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rporate debtor. It has been pointed out that the said order was upheld by Hon'ble NCLAT and later on by Hon'ble Supreme Court. b) The case of the respondent is that the stay on alienation of Hospital property of the Corporate Debtor is necessary for the proper resolution of the Corporate Debtor. c) The respondent has stated that the mere initiation of proceeding under SARFAESI Act does not transfer the rights of the property of Corporate Debtor and the stay order dated 30.09.2021 does not violate the statuary rights of the applicant. d) Further, the respondent has stated that the Code has overriding effect over SARFAESI Act in terms 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 directe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bank" similarly relied upon citation "MC Mehta vs. Union of India" and stated that injunction order passed in violation of principle of natural justice may not be sustained. Further also relied upon citations " C-Max Construction, General Manager, volks Wagon, State Bank of Travancore Vs. Mathew K.C., 2018 3 SCC 85 : 2018 2 SCC (Civ) 41. 13. On the other hand, Learned Counsel for respondent No. 1 i.e. DHFL laid stressed upon the arguments that the property in question mortgaged was prior in time to that of Yes Bank and an amount of Rs. 140 Crores of DHFL were due against the loan advanced, accordingly, after issuance of notice, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in any manner. Hence, there was no question of suppression of fact on the part of DHFL. Further, it is also contended that where the petition under Section 7 of IBC Code, has been filed, Yes Bank is fully entitled to lodge its claim before the IRP, if the petition stands accepted and order under Section 14 has been passed. Merely that the under Section 13(4) has been issued and the symbolic possession has been taken by Yes Bank, does not create a full fledge right in its favour, that too, when the right of redeeming of the property lies with the owner of the property in question i.e. Corporate Debtor. Hence, the mere taking 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 Urj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Corporate Debtor. Hence, the said order was in consonance with the objective of the IBC and falls in the line of inherent power exercised by this Tribunal. 19. Further, there is no dispute about the proposition laid down by the Hon'ble Supreme Court of India in the matter of "Aqua Borwell Pvt. Ltd. (supra)", whereby it is held that no order can be passed against the party, who has not been impleaded at the arrays of the respondents. However, this Tribunal vide order dated 30th September 2021, specifically recorded that Learned Counsel for the Corporate Debtor while accepting notice make a statement 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d creditor, so much of the money as is sufficient to pay the secured debt." 21. 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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