TMI Blog2021 (11) TMI 1095X X X X Extracts X X X X X X X X Extracts X X X X ..... Hopper Barge. HELD THAT:- It is borne out from record that the Vessel HV. VM Hopper Barge H-107 against which the Respondent No.2 is having primary charge has been disposed of by Respondent No. 2 under SARFAESI proceedings to the Respondent No.3 out of liquidation process and the Respondent No.3 has already taken physical possession by paying the entire sale consideration and also obtained sale certificate in their favour from Respondent No.2 - It is also an admitted fact that the present Applicant had filed Securitization Application before the Debt Recovery Tribunal-II, Mumbai challenging the possession notice issued under the SARFAESI Act by Respondent No.2 and the matter is subjudice before the competent DRT and the DRT has refused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Respondent No.3 as violative of the moratorium imposed under section 14 of the Insolvency and Bankruptcy Code, 2016. b. That the Hon ble Tribunal be pleased to hold the sale of the MV. VM Hopper Barge H-107 from Respondent No. 2 Bank to Respondent No.3 as a Preferential, Undervalued Fraudulent Transaction under the relevant provisions of the Insolvency and Bankruptcy Code, 2016 c. That the Hon ble be pleased to order the reversal of the sale of the MV. VM Hopper Barge H-107 from Respondent No.3 to the Corporate Applicant. d. That the Hon ble Tribunal be pleased to issue directions to Respondent No. 3to restore the MV. VM Hopper Barge H-107 back to the pool of assets of the Corporate Applicant being both violative of the morator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile their replies in the above I.A. The Respondent No.2 filed detailed reply opposing the above application contending that the applicant Mr. Mohanlal Ayyapan Pillai who is the Managing Director of the Suspended Board of the Corporate Debtor has no locus to file the above application. The Respondent No. 2 further contended as follows: a. The Respondent No.2 submits that the application filed by the Suspended Director viz. Shri Mohanlala Ayyapan Pillai of the Corporate Debtor and the provisions of the Insolvency and Bankruptcy Code, 2016 nowhere provides to file application by the suspended Director for the purpose of the prayers asked in the Application. b. The Respondent No.2 submits that he has advanced credit facilities of Rs. 5,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orate Debtor. Further, the Respondent No.2 attempted to sale the vessel and issued public notices for public auctions on various dates such as 19.12.2019. However, on the scheduled date of auction no interest buyer submitted its bid for the purchase of the vessel. f. The Respondent No.2 submits that the Respondent No. 3, after receipt of the Sale Confirmation Letter issued by the Respondent No.2, had immediately made the payment of 25% of the bid amount i.e. 1,23,75,000/- in favour of the Respondent No.2 and agreed to pay the remaining 75% amount within mutually agreed time i.e. by 17.12.2019. g. Since, the Respondent No.3 made the payment and the Sale Confirmation was already issued, the Respondent No.2 issued the Sale Certificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made the Sale Certificate was issued and the possession of the Vessel was handed over however, the title of the Vessel was already vested with the Respondent No. 3 since 02.12.2019 and therefore, the averments made by the Applicant regarding the violation of Moratorium re no longer survives and the prayer to that regard be dismissed at very outset. j. Further, the Proviso to Section 43(3) provides that any transfer made pursuant to the Court Order shall not be treated as Preferential one. Since the Respondent No.2 has acted under provisions of the SARFEASI Act such transaction cannot be treated as Preferential one and having legislative force. k. The Respondent No. 2 submits that the sale of the Vessel was already confirmed much pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en physical possession by paying the entire sale consideration and also obtained sale certificate in their favour from Respondent No.2. 8. It is also an admitted fact that the present Applicant had filed Securitization Application before the Debt Recovery Tribunal-II, Mumbai challenging the possession notice issued under the SARFAESI Act by Respondent No.2 and the matter is subjudice before the competent DRT and the DRT has refused to grant any stay to the applicant. 9. It is also borne out from record that the Respondent No.2 attempted to sell the vessel through various public auctions dated 19.12.2018, 14.06.2019, 10.08.2019, 14.09.2019 and 31.10.2019 and the admission order was passed in the above matter on 21.01.2020 and whereas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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