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TMI Blog2019 (1) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... ia, a Financial Creditor against M/s. Calyx Chemicals & Pharmaceuticals, a Corporate Debtor and pursuant to the said Order "Moratorium" commenced. 2. Present IA is submitted by Dena Bank, Applicant seeking an Interim Order to restrain IRP from demanding the custody of the Property, for ready reference, described below:- "DESCRIPTION OF THE PROPERTIES MORTGAGED Address of the Property/Security 1. Gala No 2 on the Ground Flor of the Marwah's Complex, Marwah Industrial Estate, Saki Vihar road, Andheri - East, Mumbai - 400072 2. Gala No 110 on the First Floor of the building known as "Marwah Industrial Premises" situated at 4, Marwah Industrial Estate, Saki Vihar road, Andheri - East, Mumbai - 400072 Property in the na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pleaded that undisputedly the "Moratorium" had commenced with effect from 06.02.2018 i.e. the date of Admission of Petition of SBI moved u/s.7 of The Code. 6. Ld. Counsel has pleaded that in a situation when the physical possession had already been taken before the date of commencement of "Moratorium", therefore, the Resolution Professional should not have demanded for taking over the possession of the said property. Placing reliance on Transcore vs Union of India reported in (2008 (1) SCC 125), it is pleaded that once the Bank had taken possession over the said secured asset, then the rights, title etc. stood vested in the Bank (referred Para 26). 7. On the other hand, Ld. Representative representing Resolution Professional has vehement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had attended the said meeting of the Committee of Creditors. The Applicant, vide a proposal dated 30.12.2011, sanctioned the impugned Term Loan of Rs.7.50 Crores under a Loan Scheme, which was an exclusive Scheme floated by the Bank, having no connection with other Loans provided by the members of the Consortium of Banks. The Bank is, therefore, exercising its legal right to continue with the possession. 9. Both the sides heard at length. As far as the preliminary facts are concerned related to sanction of the Loan, default by the Debtor and taking over of the possession by the Applicant are not in dispute. It is also not in dispute that the Applicant had initiated the proceedings against the Corporate Debtor by First issuing a Notice u/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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. 10. Next is the question that whether the provisions of "Moratorium" defined u/s.14 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed by examining the definition of "security interest" as defined u/s.3(31) of the Insolvency Code, reproduced for ready reference. "(31) "security interest" means right, title or interest or a claim to property, created in favour of, or provided for a secured creditor by a transaction which secures payment or performance of an obligation and includes mortgage, charge, hypothecation, assignment and encumbrance or any other agreement or arrangement securing payment or performance of any obligation of any person: Provided that security interest shall not include a performance guarantee;" 10.2. This definition has also used past tense that if security interest created in favour of or provided for a secured Creditor by a transaction whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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