TMI Blog2020 (8) TMI 641X X X X Extracts X X X X X X X X Extracts X X X X ..... perties belonging to the Corporate Debtor, in the exercise of powers vested in him under Section 8(B) of the EPF and M.A. Act, 1952 - On perusal of the letter produced, it is clear that Authorised officer, Regional officer, Vellore, issued a Recovery Certificate to the Recovery Officer, Regional Office, Vellore in exercise of powers conferred under Section 8(B) to 8(G) of the Employees Provident Fund and Miscellaneous Act, 1952. Copy of Order of attachment EPFCP-16 is also enclosed with the attachment order passed by the Recovery Officer, Employees Provident Fund Organization. Thus, it is undisputed that the attachment of immovable property of the Corporate Debtor was made by the Recovery Officer EPFO Organization on 04th August 2017 much b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... solution Process. It is also clear that the Adjudicating Authority has passed the Order even without considering the submission and objections of the Appellant. Adjudicating Authority failed to consider the fact that attachment of the property was made much before the issuance of the CIRP - thus, the Adjudicating Authority failed to take notice that attachment of the property of the corporate debtor was made much before the initiation of CIRP, but it was only recorded in the register during CIRP. It is on record that the impugned order is passed without considering the objections of the Recovery Officer, EPFO, though the objection by EPFO was already filed in the Registry of NCLT. Appeal allowed. - Company Appeal (AT) (Insolvency) No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout considering the Reply of the Recovery Officer of EPFO, the Appellant. (Rupees Fifty-Three Crore Eighty Lacs Twenty One Thousand three Hundred Seventy-Six and thirty-one paisa only). 6. The Resolution Professional has filed its counter-affidavit on behalf of the Corporate Debtor, wherein it is stated that creation of the charge of the security interest effected by the Appellant by registering the deed is in contravention of the Moratorium as contemplated under Section 74(2) read with Section 14(1) of the Code. Further, the same would result in defeating the interest of the creditors, if the Appellant herein crystallises security interest to his advantage and take the benefit of Section 52 of the Code and thus, violate the distributio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made by the Respondent, even though objections were filed by the Respondent but that was not considered and Order was passed in haste, which is against the Principles of Natural Justice. 11. The Learned Adjudicating Authority has allowed the application of the Resolution Professional on the pretext that during Moratorium, no encumbrance or charge can be created over the property, by any authority including the Respondent, except in accordance with the provision of IBC 2016 even for the dues which are payable by the Corporate Debtor. 12. The Adjudicating Authority has further observed that the provision of Section 238 of the IBC shall have effect not withstanding anything in consistent therewith contained in any other law for the tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g attachment certificated dated 10th May, 2018. It is stated that the: Recovery Officer has attached the immovable properties belonging to the said establishment and had requested to encumber the scheduled properties in your records as per the provisions. Whereas it is ascertained through your official website (www.tnreginet.com) the above-said property has not been encumbered in the name of EPFO, Vellore till date. Copy of the acknowledgement along with EPFCP-16 are enclosed for ready reference. Hence, you are once again requested to encumber the property in the name of Employees Provident Fund Organization, Vellore and not to allow the owner of the property to enter into any transaction for sale of the attached properties without the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... already existed prior to the initiation of CIRP of the Corporate Debtor. The Sub Registrar indeed failed in his duty to incorporate the attachment in the register, despite receiving the attachment order on 16th August 2017 and after that reminder letter DT 14th May 2018 and 29th November 2018. The Section 14 of the Insolvency and Bankruptcy Code, 2016 prohibits transferring, encumbering, alienating or disposing of by the Corporate Debtor any of its assets or any legal right or beneficial interest therein by the Corporate Debtor. In this case, the alleged encumbrance certificate which was issued during Moratorium is only the incorporation of earlier Order in the record. But in fact attachment of the property was made much before the initiat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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