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TMI Blog2021 (1) TMI 1229X X X X Extracts X X X X X X X X Extracts X X X X ..... ns. No. 77 of 2022 and Company Appeal (AT) Ins. No. 76 of 2022 have been filed against the same Impugned Order dated 31st December, 2021 passed by the Adjudicating Authority (National Company Law Tribunal, New Delhi, Bench-IV) in I.A. No. 4516 of 2021 in CP(IB) No. 472/ND/2019. Company Appeal (AT) Ins. No. 77 of 2022 has been filed by the Yes Bank Ltd. who has filed an Application i.e. 4516/ND/2021 before the Adjudicating Authority to vacate the Interim Order dated 30.09.2021 passed by Adjudicating Authority. Company Appeal (AT) Ins. No. 76 of 2022 has been filed by M/s. Nayati Healthcare and Research NCR Private Limited against whom Application under Section 7 of the Code has been filed by Dewan Housing Finance Corporate Limited (Respondent herein). 2. We need to notice only some of the facts of the case for deciding this Appeal. 3. The Respondent No. 1-Dewan Housing Finance Corporate Limited has extended certain 'Credit Facility' to M/s. Nayati Healthcare and Research NCR Pvt. Ltd. (hereinafter referred to as 'Corporate Debtor'). In August, 2018, Yes Bank Limited had extended 'Financial Facility' to the Corporate Debtor in the month of September/November, 2018. Yes Bank Limited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 application by this Hon'ble Adjudicating Authority; b) Ad-interim injunction be granted on the operation of the Possession Notice, till the next date of hearing; c) Interim injunction be granted on the operation of the Possession Notice, till the pendency of this application; d) Pass any other orders or further relief(s) as this Hon'ble Adjudicating Authority may deem fit and proper in facts and circumstances of the present case." 5. The above Application was taken by the Adjudicating Authority on 30.09.2021 on which date the Adjudicating Authority passed the following orders: "IA No. 4439/ND/2021: Application filed by the Financial Creditor seeking ad interim relief against the Corporate Debtor as well as the another Financial Creditor of the Corporate Debtor being Yes Bank. Learned Counsel for the Corporate Debtor accepts notice and makes a statement that as on date, the Corporate Debtor is in possession of the immovable property assets of the company. Issue notice to Yes Bank. Learned Counsel for the Corporate Debtor also undertakes to file Reply within two weeks. In the meantime, both the respondents should maintain status quo with respect to assets of the company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 7 filed by the Financial Creditor on 26th August, 2021 has yet not been admitted and before admission of the Application, there is no jurisdiction with the Adjudicating Authority to pass any Injunction Order. It is submitted that taking possession under Section 13(4) of the SARFAESI Act, 2002 by the Yes Bank Limited Corporate Debtor can no longer deal with the property and it is divested with its ownership on the mortgage property. Hence there was no object in granting any kind of injunction. It is submitted that Adjudicating Authority without recording any finding on prima facie case, balance of convenience and irreparable loss, has passed the Interim Order. It is further submitted that order dated 30.09.2021 was passed without hearing the Yes Bank Limited which is the affected party. It is well settled law that no adverse Order can be passed against a person who is not party to the proceeding. There being no eclipse on the proceedings under SARFAESI it should be allowed to have its free play and Adjudicating Authority cannot interdict the proceedings under SARFAESI Act. The mortgage property is no longer asset of the Corporate Debtor. 9. Mr. Gopal Jain, Sr. Advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aised by Learned Sr. Counsel for the Appellant that Adjudicating Authority has no jurisdiction to pass any Interim Order of the Status - Quo prior to admission of Section 7 Application, Learned Sr. Counsel for the Respondent has relied on Judgment of this Tribunal in Company Appeal (AT) Ins. No. 664 of 2019 in the matter of 'NUI Pulp and Paper Industries Pvt. Ltd. Vs. M/s. Roxcel Trading GMBH' in which case also the Adjudicating Authority before admission of the Application under Section 9 of the Code had passed an Interim Order on 15th July, 2019. In an Appeal filed against the said order, it was contended that Adjudicating Authority has no jurisdiction to pass any Interim Order prior to admission of the application. This Tribunal after noticing the Rule 11 of the National Company Law Tribunal, Rules, 2016 laid down following in Paragraphs 9 to 12: "9. From the aforesaid Rule 11, it is clear that the Tribunal (Adjudicating Authority herein) can make any such order as may be necessary for meeting the ends of justice or to prevent abuse of the process of the Tribunal. 10. From the aforesaid provisions, it is clear that once an application under Sections 7 or 9 is filed by the Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rights of the Creditors. If any such fact is brought before the Adjudicating Authority, it does not lack jurisdiction to protect the properties of the Corporate Debtor till the Applications are admitted or rejected. We thus accept the submissions of the Learned Sr. Counsel for the Respondent that Adjudicating Authority had jurisdiction to pass order dated 30.09.2021. In so far as the submissions of Mr. Shyam Divan, Sr. Advocate that Order dated 30.09.2021 was passed against Yes Bank Limited not being party to the Proceedings suffice it to say that in the Order dated 30.09.2021 itself Adjudicating Authority has directed to issue notice to the Yes Bank Limited. The Adjudicating Authority had jurisdiction to pass ex-parte Interim Order and the Order of the Adjudicating Authority to issue Notice to Yes Bank Limited and hear them amply protected the intention of the Yes Bank Limited. It is well settled that Court or Tribunal having jurisdiction to pass Interim Order can also pass ex-parte Interim Order. The mere fact that Yes Bank Limited was not party to the proceeding does not disentitle the Adjudicating Authority to pass any Interim Order affecting the Yes Bank Limited more so whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 2002 Rules. ............ 31. Another argument made by learned senior counsel for the respondents is that if we were to accept the construction of section 13(4) argued by the appellants, the object of the Act would be defeated. As has been pointed out hereinabove in the Statement of Objects and Reasons of the original enactment, paragraphs 2(i) and 2(j) make it clear that the rights of the secured creditor are to be exercised by officers authorised in this behalf in accordance with the rules made by the Central Government. Further, an appeal against the action of any bank or financial institution is provided to the concerned Debts Recovery Tribunal. It can thus be seen that though the rights of a secured creditor may be exercised by such creditor outside the court process, yet such rights must be in conformity with the Act. If not in conformity with the Act, such action is liable to be interfered with by the Debts Recovery Tribunal in an application made by the debtor/borrower. Thus, it can be seen that the object of the original enactment also includes secured creditors acting in conformity with the provisions of the Act to realise the secured debt which, if not done, gives ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Status-Quo Order dated 30.09.2021 has been continued till the next date of hearing. We have been informed by the Learned Counsel for the parties that the matter both on I.A. 4516 of 2021 as well as the main CP (IB) No. 472/2021 has been fixed for 15th February, 2022. The Order dated 30.09.2021 is now continuing for last more than three months and now 15th February, 2022 is the next date fixed in the matter, we are of the view that at this stage it is not necessary for us to express any final opinion regarding the various issues raised by the parties regarding title and ownership of the immovable properties whether it is still in ownership of the Corporate Debtor or stand transferred to Yes Bank Limited. What is nature of claim of the Financial Creditor-Dewan Housing Finance Corporate Limited quo the immovable property which is also mortgaged to Yes Bank Limited, all these issues have to be considered and decided by the Adjudicating Authority finally. The Adjudicating Authority has only continued Interim Injunction dated 30.09.2021 till the next date of hearing i.e. 15th February, 2022 fixed before the Adjudicating Authority. We hope and trust that the Adjudicating Authority shall ..... X X X X Extracts X X X X X X X X Extracts X X X X
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