Page 776 - IBC Orders us 7-CA Mukesh Mohan

Order Passed under Sec 7
By Hon’ble NCLT Mumbai Bench
Surprisingly, Indus who moved this Company petition filed an Intervening Application on 18.4.2017

before the Ld. DRT that it was willing to deposit Z5crores on behalf of the Corporate Debtor and also
deposit the remaining balance of Rs. 14.26 crores within a period of six months, but the Ld. DRT did not
entertain that application from by treating 5crores deposited by Indus as paid by the Corporate Debtor.

Though Rs. 5 crores has been paid by Indus within the extended period, remaining balance amount did
not come within a period of six weeks, i.e. on or before 30.5.2017, then JM moved an application before

Ld. DRT for vacating the stay granted for enabling it to hand over the possession of the property to Omni.
JM says when hearing date 30.5.2017 came, Indus has caused its appearance before Ld. DRT with a
prayer for the stay of pending securitisation application on the ground that it had already filed CP u/s 7 of

Insolvency & Bankruptcy Code, 2016 before this Bench. JM further submits that this Bench admitted the
CP u/s 7 of Insolvency & Bankruptcy Code on 29.5.2017 declaring moratorium over the Corporate
Debtor.

5. Now JM submits that this Corporate Debtor threadbare litigated with JM at all stages, above this,
Indus, sailed along with the Corporate Debtor before DRT until before initiating Insolvency proceedings

before this Bench. JM says since Indus filed this CP colluding with the corporate debtor by misusing the
avowed object of Insolvency & Bankruptcy Code, this Bench ought not to have declared Moratorium
without hearing and considering the case of JM - the only secured creditor of the Corporate Debtor. By

the time this Insolvency proceeding initiated, JM already conducted sale of the asset of the debtor,
wherein Omni deposited 25% of the sale price, pursuant to which, the authorised officer confirmed sale in

favour of Omni. Since the sale of secured asset being a concluded transaction, JM says that the impugned
order dated 29.5.2017 shall have no effect on the concluded sale, therefore this sale transaction cannot be
read down as hit by the moratorium declared on 29.5.2017. The Applicant further submits that the sale of

the impugned asset by JM in enforcement of its security in view of the default committed by the
Corporate Debtor would not in any manner prejudice the rights of Indus; therefore, JM has sought the
reliefs as mentioned above.

6. On this MA, the argument of JM and Omni is that the admission order has been fraudulently
obtained by Indus without bringing full facts, therefore, this order is to be set aside by invoking Section

65(1) of Insolvency & Bankruptcy Code, 2016 whereas, Indus and the Corporate Debtor side submission
is that the sale canvassed as concluded sale is not a concluded sale and this Bench having in the order
29.5.2017 already dealt with pendency of SARFAESI proceedings, the order dated 29.5.2017 is valid, and

it can't be recalled in the name of fraud.

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