TaxTMI 
TaxTMI 
2021 (2) TMI 1096
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....v J., Mr. Sai Kaushal, Mr. G. Aniketh Reddy and Mr. T.P.S. Harsha, Advocates for R-1 to 4. Mr. Shashank Agarwal, Advocate for R-5. Mr. Sutanu Sinha, Liquidator JUDGMENT The present Appeal is filed by the Appellant - Union Bank of India (Andhra Bank now merged with Union Bank of India, vide G.S.R.154 (e) dated 04th March, 2020, under the Amalgamation of Andhra bank and Corporation Bank into Union bank of India scheme, 2020), under Section 61 of the Insolvency and Bankruptcy Code, 2016 (in short 'Code') against the Impugned order dated 20.08.2020 passed by the Adjudicating Authority (National Company Law Tribunal, Hyderabad Bench, Hyderabad) I.A No. 335 of 2020 in CP(IB) No.297/7/HDB/2017. 2. The Adjudicating Authority vide impugned ....
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....nd accordingly, do not belong to the corporate debtor. State Bank of India filed an Application before the Adjudicating Authority under section 7 of the Code to initiate Corporate Insolvency Resolution Process (for short 'CIRP') against the corporate debtor (IVRCL Limited) when its account classified as Non-performing Assets ('NPA') and the Adjudicating Authority has admitted the application on 23.02.2018 and as no successful resolution plan was approved by the Committee of Creditors ('CoC'), the Adjudicating Authority passed an order of liquidation under section 33 of the Code on 26.07.2019. 4. The Appellant submitted its proof of claim under Form-D dated 22.09.2019and the Liquidator admitted the claim of Rs. 660.15 crore of the Appella....
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....r of the Corporate Debtor (IVRCL Limited) has intimated on 03.03.2020 to the National Stock Exchange about the bid for the corporate Debtor to be sold as a "going concern". The Adjudicating Authority accordingly has passed the impugned order setting aside the Possession Notice and other directions. They have also challenged that the Appeal is liable to the dismissed due to lack of authorization of the alleged authorized signatory to file the Appeal resulting from the merger of Corporation Bank into Union Bank of India. They have also submitted that Section 238 of the Code supersedes the provisions of the SARFAESI Act and hence the proceedings initiated by the Appellant Bank under the SARFAESI Act were illegal and had no bearing on the "Code....
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....guarantor even after initiation of CIRP, approval of Resolution Plan or liquidation proceedings being commenced or closed and considering these submissions, the Adjudicating Authority has passed the order stated above. 7. We have gone through the submissions made by the learned counsels both Appellant and Respondents and we observe that the followings facts are not in dispute: a. The Respondents are Corporate guarantors and are subsidiaries companies of the corporate Debtor under Liquidation. b. The Respondents have mortgaged some properties as collateral properties to secure the financial debt of Corporate Debtor and one exclusive security which is an open land consisting of 133 properties admeasuring 75.94 crore in Ta....
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....tings of the lenders (CoC) of Corporate Debtor (IVRCL Limited) under Liquidation as per Paper Book Annexure-11 page 330 it clarifies on the issue of subsidiary assets as a part of liquidation estate or not and the same is reproduced below: a. "The claim submitted for Corporate Guarantee given for subsidiary companies will not form part of Liquidation Estate. b. The claim admitted amount is subject to return of bank guarantee means if the bank guarantee is not utilized and returned to bank will not form part of claim and will be reduced from the admitted claim amount. c. Some assets given interest to SREI was taken over by SREI before CIRP period, so the corresponding claim amount of SREI is being reduced to that e....
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....d on account of avoidance transactions that may be avoided under this Chapter; (d) assets of any Indian or foreign subsidiary of the corporate debtor; Hence, the assets of the subsidiaries are outside the purview of liquidation estate and as such cannot form part of the liquidation estate. The Appellant Tribunal itself in Company Appeal (AT) (Ins) No. 167 of 2020 has held on 28.01.2020, the following: "After hearing learned counsel for the Appellant for a while we find that the claim sought to be enforced by the 'Corporate Debtor' has been rightly declined by the Adjudicating Authority (National Company Law Tribunal) Division Bench, Chennai as in terms of provisions of Section 36 (4) (d) of the 'Insolvency and Bankruptc....