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2020 (5) TMI 325 - Tri - Insolvency and BankruptcyPermission to applicant to take possession of fixed assets and all documents avaliable in the office and other premises of the Corporate debtor - mortgage of the property - HELD THAT:- As per Section 65-A(2)(c) of the Transfer of Property Act, 1882 as amended from time to time, no lease shall contain a covenant for 'renewal'. In the lease agreement of the Corporate Debtor, in a related party transaction with Marathe Hospitality, the total rent for a huge Commercial property measuring about 2310 sq. mtr. along with two-storeyed building structure, is only ₹ 25,000 per month with no increase in rental for a period of 10 years. In addition, as per the Lease Agreement, there is a provision for further extension at the sweet will of Lessee. In view of this, the Lease Agreement entered into between Phadnis Resorts and Spa India Limited and Marathe Hospitality is illegal as per the relevant provisions of the Transfer of Property Act, 1882 - the lease agreement entered into between Corporate Debtor and Marathe Hospitality in 2016 without the consent of Union Bank of India who are having First charge on the property is mala fide and is invalid. It is also clear that the Union Bank of India, after going through all records and title report of the property, have financed the Corporate Debtor and, therefore, the property which was acquired in 2004 has not been acquired by the Corporate Debtor fraudulently. The attachment of the assets of the Corporate Debtor by the Economic Offences Wing will hamper the claim of the Creditors of the Corporate Debtor and therefore to protect the interest of the Bank and the present Creditors, this Bench directs the Economic Offences Wing and other Government Departments to release the property and assets of the Corporate Debtor currently attached with them so that the Corporate Insolvency Resolution Process of the Corporate Debtor could be conducted in the substantial public interest. Thus, in terms of Section 238 of IBC and considering the overriding effect of IBC u/s 238 of the Code this Bench is of the considered view that the attachment order of the Economic Offences Wing is a nullity and non-est in law and therefore will not have any binding force. The Resolution Professional who is the Applicant in this Miscellaneous Application to take possession of fixed assets and all documents available in the office and other premises of the Corporate Debtor - application allowed.
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