TMI Blog2021 (11) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, when we see the real intent of enforcing the moratorium, we observe that the same is introduced with the intention to preserve the assets of the Corporate Debtor. The moratorium cannot be used as a shield by the Corporate Debtor to make its illegal acts as legal. The bar under Section 14(1)(a) shall not be applicable here and the moratorium enforced shall nowhere come in way of the Applicant for executing the Arbitral award. Since the property in question has already been declared that it is not the asset of the Corporate Debtor, therefore, any proceeding which does not concern the asset of the Corporate Debtor can be continued against the Corporate Debtor - Since, the execution proceeding is already sub-judice before the Hon'ble High Court of Bombay and this Adjudicating Authority has already held that the moratorium shall not come in between the proceedings which does not relates to the Assets of the Corporate Debtor. Application disposed off. - IA No. 1921 of 2021 in C.P. (IB) No. 494/MB/2019 - - - Dated:- 8-10-2021 - Bhaskara Pantula Mohan, Actg. President And Narender Kumar Bhola, Member (T) For the Appellant : F.E. Devitre, Mustafa Doctor, Senior Advo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sical and actual peaceful possession of the Decreed Property to the Applicant by executing the Deed of Conveyance to the Applicant. d. The Corporate Debtor challenged the said award under Section 34 of the Arbitration and Conciliation Act, 1996. The Learned Single Judge of the Hon'ble Bombay High Court vide Order and Judgment dated 14 17 July, 2017 dismissed the Section 34 Petition of the Corporate Debtor and upheld the award dated 29.08.2016. e. It is submitted that on 05.10.2016, Action Barter Pvt. Ltd., a creditor of the Corporate Debtor had filed a Company Petition No. 1066 of 2015 before the Hon'ble Bombay High Court seeking appointment of a Provisional Liquidator and consequent winding up of the Corporate Debtor. On 24.08.2017, the Hon'ble Bombay High Court appointed Official Liquidator of the Hon'ble Bombay High Court as the Provisional Liquidator of the Corporate Debtor. Official Liquidator of the Hon'ble Bombay High Court is Respondent No. 2 (R2) in the present Application. f. The Applicant submits that on 14.11.2017, the Applicant filed a Commercial Execution Application No. 134 of 2017 before the Hon'ble Bombay High Court for exec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y-seven Lakh Sixty-Seven Thousand Nine Hundred and Thirteen only). The Hon'ble Bombay High Court vide its order dated 28.11.2019 directed R1 to make the said payments and reimburse to R2 the said expenses incurred and upon such payment R2 was directed to handover the assets and records of the Corporate Debtor to R1. l. It is further submitted that on 08.10.2020, the Hon'ble Supreme Court granted leave to R1 to be brought on record in place of R2 as the Petitioner in the said SLP. The Hon'ble Supreme Court on 16.10.2020 dismissed the SLPs including the said SLP of R1 filed on behalf of the Corporate Debtor, VIT and the erstwhile Director of the Corporate Debtor. m. The Applicant submits that thus all the challenges to the said Award/Decree for specific performance have failed and been rejected upto the Hon'ble Supreme Court of India. n. The Hon'ble Bombay High Court on 17.12.2020 passed an order in IA No. 243 of 2021 filed by the Applicant in the Execution Application and held as below:- 5. ...it is not in dispute that the Applicant has an Award in its favour in relation to the said property and which is put in execution. The challenge to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orporate Debtor to transfer, convey and assign the Decreed Property to the applicant against payment of the balance consideration in the manner set out below and to hand over possession of the Decreed Property to the Applicant in view of the Order of the Hon'ble Supreme Court dated 16 October 2020 upholding the Award dated 29 August 2016 passed in favour of the Applicant on such payment in the following manner viz: (i) the sum of ₹ 1,30,53,674/- (Rupees One Crore Thirty Lakh Fifty-Three Thousand Six Hundred and Seventy-Four only) or such other amounts as are payable to Respondent No. 2 directly against reimbursement of expenses from the common pool as per the Orders dated 28 November 2019, 23 January 2020 and 28 July, 2021 and (ii) the balance sum to Respondent No. 1; b. In the alternative to prayer (a) above, this Hon'ble Tribunal direct and authorize Respondent No. 1 herein to join in the execution of the conveyance deed and other required documents to sell, transfer, convey and assign the Decreed Property to the Applicant in the pending Execution Application No. 134 of 2017 in the Hon'ble Bombay High Court including authorising the Respondent No. 1 to exec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of repeated requests over the last 23 months, have come forward to infuse the funds necessary for the RP to execute the CIRP process of the Corporate Debtor. The RP does not even have the funds to pay the Official Liquidator (OL) in terms of the Bombay High Court order dated 28.11.2019. iii. One of the paramount functions of the RP is to keep the Corporate Debtor as a going concern, by enabling it to conduct its business in the normal course. In present case business of Corporate Debtor is Real Estate. However, on account of the moratorium already imposed under section 14, the RP had informed the Applicant that it would be appropriate that the Tribunal be approached for the requisite permission to convey the Subject Property and receive the balance consideration of ₹ 75.30 crores which is the entitlement of the Corporate Debtor. iv. The execution of a formal conveyance by the Corporate Debtor in favour of the Applicant would accrue the Corporate Debtor valuable balance sale consideration of ₹ 75.30 crores, which would make the CIRP possible to proceed and conclude as a going concern. ORDER 5. After hearing the submissions of both the parties, perusing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bserved that Section 14(1)(b) creates an impediment from transferring, alienating, encumbering only towards the 'asset' of the Corporate Debtor. In order to examine that whether such bar is applicable in the present case or not, it is necessary to examine that whether the property in Question is the 'asset' of the Corporate Debtor? 9. In order to examine the real ownership of the asset/property in question, it is necessary to visit towards the contents of the Arbitration Award dated 28.06.2004 passed by the Ld. Arbitrator which was upheld by the Hon'ble Apex Court. The contents of the operative portion of the Arbitration Award is reproduced hereunder: ...the Respondents are directed to take all necessary steps to sell, transfer and assigned the property in dispute and convey the title to the claimant over the said property on terms agreed between the parties and execute all deeds and documents and to do all acts and perform all obligations by doing requisite acts, deeds and things as may be necessary and hand over the physical and actual peaceful possession of the property to the claimant by executing deed of conveyance to the claimant on terms agreed be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pth examination is Section 14(1)(c) of The Code. There are recognised canons of interpretation. Language of the Statute should be read as it existed. This is a trite law that no word can be added or substituted or deleted from the enacted Code duly legislated. Every word is to be read and interpreted as it exists in the statute with the natural meaning attached to the word. Rather in this Section the language is so simple that there is no scope even to supply casus omissus'. I hasten to add that the doctrine of Noscitur a Sociis' is somewhat applicable that the associated words take their meaning from one another so that common sense meaning coupled together in their cognate sense be interpreted. As a result, its denotes the property owned by the Corporate Debtor. The property not owned by the Corporate Debtor do not fall within the ambits of the Moratorium. Even Section 10 is confined to the Book of the Accounts of the Corporate Debtor, due to the reason that Section 10(3) has specified that the Corporate Applicant shall furnish its Books of Accounts. This Bench has no legislative authority to expand the meaning of the term its even under the umbrella of 'Ej ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tors of the Corporate Debtor to obstruct these proceedings. All challenges to the Arbitral Award have been rejected right upto the Apex Court. The attempt on the part of the Ex-Directors to intervene in the proceedings, had been rejected the Bombay High Court. Infact, the High Court had held that VIT has not right. Hence, this Tribunal need not even bother to look into the claims of VIT. 18. Therefore, having convinced with the arguments on the part of the Applicant, as we hereby allow the prayer (b) and (c) sought by the applicant, ...prayer (b) This Tribunal direct and authorize Respondent No. 1 herein to join in the execution of the conveyance deed and other required documents to sell, transfer, convey and assign the Decreed Property to the Applicant in the pending Execution Application No. 134 of 2017 in the Hon'ble Bombay High Court including authorising the Respondent No. 1 to execute and sign the said documents or consent to the said documents being executed and signed on behalf of the Corporate Debtor by an officer appointed by the Hon'ble Bombay High Court in those proceedings, against payment of the balance consideration of ₹ 75,30,00,000/- (Rupe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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