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2019 (1) TMI 83 - Tri - Insolvency and BankruptcyInterim Order to restrain IRP from demanding the custody of the Property - whether the provisions of “Moratorium” defined u/s.14 be applicable under the circumstances? - Held that:- The Ownership is a deemed Ownership and not the actual Ownership and in that capacity the Bank/ Financial Institution can exercise their right as if the Owner of the asset but not the actual Owner. The connotation used, ‘as if’, is highly significant giving an indication that the Ownership is a deemed Ownership. The outcome of this discussion is that the IRP is duty bound to invoke the jurisdiction prescribed u/s.18 to perform duty of taking over the control and custody of any asset over which the Corporate Debtor has Ownership right as recorded in the Balance Sheet of the Corporate Debtor. The action of the IRP demanding possession over the property is justifiable considering the said specific provision of the Insolvency Code. The Ownership is a deemed Ownership and not the actual Ownership and in that capacity the Bank/ Financial Institution can exercise their right as if the Owner of the asset but not the actual Owner. The connotation used, ‘as if’, is highly significant giving an indication that the Ownership is a deemed Ownership. The outcome of this discussion is that the IRP is duty bound to invoke the jurisdiction prescribed u/s.18 to perform duty of taking over the control and custody of any asset over which the Corporate Debtor has Ownership right as recorded in the Balance Sheet of the Corporate Debtor. The action of the IRP demanding possession over the property is justifiable considering the said specific provision of the Insolvency Code. On co-joined reading of Sec. 3(31) with Sec.14(1)(c) gives a clear indication that the transaction of enforcement of security interest has been created under SARFAESI Act in the past which is to be prohibited for further action of foreclosure or recovery. As a consequence, under the present circumstances, the taking over of the possession by Dena Bank is very much covered under the clauses of “Moratorium” prohibiting not to deal with the impugned asset. Facts of the case have also revealed that the Applicant (Dena Bank) has already been inducted in the Committee of Creditors. As a consequence, all the properties belonging to the Corporate Debtor should come within one basket for further consideration, either by a Resolution Applicant or for the purpose of “Liquidation”. All the members of the Committee of Creditors including Dena Bank shall have their respective share in the assets pooled together.
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