IBC prevails over inconsistent SARFAESI action where the corporate debtor still owns the asset and the IRP must take custody.

Section 18 of the Insolvency and Bankruptcy Code requires the Interim Resolution Professional to take control and custody of assets over which the corporate debtor retains ownership, even if physical possession has earlier been taken by a secured creditor. The exclusion in the Explanation to Section 18 applies to third-party-owned assets in the corporate debtor's possession, not to assets still belonging to the corporate debtor. Because the Code contains an overriding clause in Section 238, inconsistent enforcement under the SARFAESI Act must yield. Accordingly, possession taken under Section 13(4) of SARFAESI could not defeat the IRP's right to custody of the mortgaged property.

---

---

Issues: Whether the Interim Resolution Professional was entitled to take control and custody of the mortgaged property, and whether the secured creditor could retain possession by relying on measures taken under the SARFAESI Act despite the insolvency process.

Analysis: Section 18 of the Insolvency and Bankruptcy Code casts a duty on the Interim Resolution Professional to take control and custody of assets over which the corporate debtor has ownership rights, including assets not in its physical possession. The explanation to Section 18 excludes assets owned by a third party in possession of the corporate debtor, but does not exclude assets that continue to belong to the corporate debtor merely because possession has been taken by a secured creditor. The Code came into force later and contains an overriding clause in Section 238, so any inconsistency with the SARFAESI Act must yield to the insolvency regime. Since title to the property remained with the corporate debtor, possession taken under Section 13(4) of the SARFAESI Act could not defeat the IRP's statutory entitlement to take custody of the asset.

Conclusion: The secured creditor was not entitled to retain possession, and the property had to be handed over to the Resolution Professional.

Ratio Decidendi: Where the corporate debtor retains ownership of an asset, the Insolvency and Bankruptcy Code prevails over inconsistent enforcement under the SARFAESI Act and requires the Interim Resolution Professional to take custody of that asset, even if physical possession had earlier been taken by the secured creditor.

---