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2020 (2) TMI 1407 - Tri - Insolvency and BankruptcyLiquidation Order - transfer of possession of two properties mortgaged by the corporate debtor - only aspect that remains is that possession has not been handed over in favour of R3 prior to the date of declaration of moratorium in order to complete the transfer - Section 33(1)(a) of IBC, 2016 - HELD THAT:- The sale certificate has not so far been engrossed in a stamp paper. In such circumstances, R 3 cannot claim legal title or ownership over the Bankura property. In the said circumstances, we have no hesitation to hold that the Bankura property is the property of the Corporate Debtor as on the date of declaration of moratorium i.e as on 20.08.2019 and R3 has no right to retain possession of the said property. In respect of Howrah property, since the R1 was obliged not to conclude the sale as per the undertaking dated 16.08.2019 before the DRT, the issuance of sale certificate and alleged handing over of possession of the Howrah property to R2 become illegal because as on the date of declaration of the moratorium the said undertaking was in force. More-over, the said sale certificate also was not engrossed on stamp paper and no evidence was led in to prove that the Howrah property was handed over to R2 as attempted to prove on the side of R1. Taking into account the overall factual scenario, and the fact that the possession of the property has not been granted in favour of R3 before the date of declaration of moratorium and since no evidence was led in other than sale certificate to prove that possession was handed over to the R2 and that issuance of sale certificate in favour of R2 being found illegal and issuance of sale certificate in favour of R3 was subsequent to the date of declaration of moratorium, we are of the view that Bankura property as well as Howrah property are the assets of the CD and that R2 and R3 has not obtained any legal ownership or title as claimed by them. In short, R2 and R3 have no right to retain the properties and the property belongs to the Corporate Debtor. As regards the Bankura Property, it was in the possession of the R1 as on the date of declaration of moratorium. That property ought not to have been permitted to be transferred to the purchaser. So RP himself who was duty bound to safeguard the property did not take as much care as was expected at least from a prudent man. However, we are not going deep into the circumstances behind the handing over possession of the disputed property by R1, in the case in hand. The application is liable to be allowed by directing the RP to recover possession back from the auction purchasers and to be listed as liquidation assets and to have valuation of the properties in accordance with provisions of Code, and Regulations. An application filed by two of the members of the suspended board of directors of the Corporate Debtor, under section 60(5) challenging the inclusion of an operational creditor's claim and its representative in the CoC constituted by the RP. When this application was taken up for hearing, the Ld. Sr. Counsel for the applicant did not press it for hearing. Moreover, the CIRP period of 180 days have already expired. The prayer also has become infructuous. Hence the same is liable to be dismissed - An application filed by the RP under section 19 and 70 of the Code alleging non-cooperation from the directors of the suspended board of Corporate Debtor. Since the CIRP period expired on 15.02.2020 has not been extended and RP prays for passing an order of Liquidation for want of resolution plan, we are closing the CA without entering into merits of the allegations leveled by the RP as against the directors. This application also requires no further consideration. Accordingly it is liable to be dismissed. No resolution plan was obtained by the RP within the period of 180 days, and the CoC has not decided for extension of CIRP period, we have no other alternative than to pass an order requiring the Corporate Debtor to be liquidated in the manner as laid down in Chapter III of the Code - In the said peculiar circumstance brought out in the case in hand it appears to us that it is fair and just to appoint an independent insolvency professional other than proposed by the PNB. The Corporate Debtor namely, Amrit Hatcheries Private Limited is ordered to be liquidated - Application allowed by directing the Liquidator to take possession of Howrah property from R2 and Bankura property from R3 and include the same in the liquidation assets. The liquidator is at liberty to appoint valuers for valuing the said properties in accordance with the provisions of the Code and Regulations.
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