B.S.V. Prakash Kumar, Member - (1.) It is a miscellaneous application (IA 02/2017) filed by a secured creditor (an asset reconstruction company namely J.M. Financial Asset Reconstruction Company, to which Corporation Bank assigned the debt availed by the Corporate Debtor herein) for recall of the order of Moratorium declared in CP 1043/I & B/NCLT/MB/MAH/2017 filed against the corporate debtor seeking clarification: - that the admission order dated 29.5.2017 declaring moratorium against the Corporate Debtor does not operate and/or does not in any manner effect the rights of the applicant to enforce its security and/or the rights of the third party to enjoy the property purchased by it in public auction, - or in the alternative to modify the Moratorium order dated 29.5.2017 to the extent that the said order does not operate and/or does not in any manner effect the rights of the applicant to enforce its security and/or the rights of the third party to enjoy the property purchased by it in public auction and such the relief as this Tribunal deems fit.
(2.) For the sake of brevity, the petitioner/financial creditor in the CP is referred as "Indus", corporate debtor as "corporate debtor" only, applicant/secured creditor in MA as "JM", the purchaser of the property in SARFAESI proceedings, namely Omni Active Health Technologies Ltd. as "Omni", Learned Debt Recovery Tribunal, Mumbai as "DRT".
(3.) Jm is an asset reconstruction company incorporated under Companies Act, 1956 and thereafter registered u/s. 3 of SARFAESI Act. For the Corporate debtor defaulted in making repayment of the loan facility availed on mortgage of its assets situated at Village Maan, Taluka Mulshi, District Pune from Corporation Bank, it invoked SARFAESI proceedings against the Corporate Debtor in respect to the mortgaged property above referred. On the said proceedings, as the Corporate Debtor invoked Section 17 of SARFAESI Act before Debt Recovery Tribunal, Pune by filing Securitisation Application 41/2013, the said Corporation Bank on 30.3.2013, instead of itself proceeding, assigned this debt to JM by an Assignment Agreement, whereupon JM has filed OA 286/2013 before Debt Recovery Tribunal, Pune, upon which, the DRT on 5.5.2014 ordered this Corporate Debtor to pay to JM a sum of Rs.14,58,46,527 with further interest @12% per annum from 9.5.2013 till the date of realisation. In addition to the aforesaid original application, JM has also taken measures under the provisions of SARFAESI Act by issuing notice u/s. 13(2) and obtained an order u/s. 14 for getting necessary assistance from the District Magistrate for taking physical possession of the immovable property mentioned above. Since the Corporate Debtor has felt aggrieved of the orders mentioned above, this Corporate Debtor once again filed a fresh Securitisation Application 75/2016 in DRT, Mumbai challenging the measures taken by JM. On which, DRT, Mumbai, has refused to grant any interim relief to this Corporate Debtor challenging the sale notice issued by JM. Since no stay had been granted by DRT, Mumbai, JM on 28.2.2017 proceeded with auction confirming the offer from Omni for sale price of Rs.19,26,00,000 on payment of 25% of sale price on the same day i.e., 28.2.2017 and the balance sale price payable on or before 14.3.2017. Again when this Corporate Debtor filed stay application on 21.3.2017 on issuance of sale certificate to Omni DRT Mumbai.;