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2021 (12) TMI 1329 - Tri - Insolvency and BankruptcySeeking restraint on 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 - seeking injunction on operation of possession notice issued by applicant under Section 13 (4) of SARFAESI Act - seeking injunction on the operation of possession notice till the pendency of the present application - HELD THAT:- Admittedly, vide order dated 30th September 2021, this Tribunal directed the parties to maintain status-quo, although, no detailed order was passed on that day, but it is a matter of fact that the proceedings before the IBC are in nature that assets of the Corporate Debtor should be protected, so that it could not have been siphoned off during this period - while passing the order at 09:30 p.m. pertaining to maintain the status qua, the object of this Tribunal was only to protect the assets of 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. 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 Corporate Debtor, it is to be presumed that the charge has been duly created in the favour of the Financial Creditor/petitioner herein also. Moreover, merely that the charge has not been entered under the CERSAI, that does not mean that the preferential right has been created in the favour of the Yes Bank. Hence, in the present matter, where the petitioner herein being a Financial Creditor have a prime facie case in its favour although, the Yes Bank has also extended credit facility to the Corporate Debtor, therefore, until the petition is being heard finally, it is appropriate to protect & preserve the property of the Corporate Debtor not only for the benefit of all the creditors, but also for the Corporate Debtor. Thus, the affirmed view is that the injunction order of maintaining status qua must continue till the next date of hearing.
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