TaxTMI 
TaxTMI 
TaxTMI 
2021 (5) TMI 318
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....03.2013, letter of Modification dated 29.03.2013, Letter of Modification dated 05.04.2013 and Loan Agreement dated 30.03.2013 executed by and between the Applicant and Defendant No. 1. 3. It is further submitted that to secure the said Credit Facility availed from the Applicant, the Corporate Debtor had executed/provided the securities in favour of the Applicant viz. a) Deed of Hypothecation dated 11.04.2013 executed between the Corporate Debtor and the Applicant under which the Applicant has hypothecated and charged in favour of the Applicant, as and by way of exclusive first charge, the entire receivables under Shipbuilding Subsidy Scheme to be received from the Ministry of Shipping, Government of India, both present and future of Corporate Debtor (Deed of Hypothecation). b) Indenture of Collateral Security dated 30.03.2013 executed by Onaway Industries Limited in favour of the Applicant inter alia assigning, transferring and assuring unto the Applicant as and by way of first charge, its lease hold right, title and interest in respect of the premises being plot bearing Block No. 903 at Village Mendhar, Taluka Gandevi, District Navsari adme....
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....as numbered as Recovery Proceeding Number 219 of 2017. Which said proceeding is pending before the Hon'ble Recovery Officer attached to Hon'ble DRT for recovery of dues of the Applicant as per judgment in Original Application. 9. During the pendency of said recovery proceeding, one Creditor of the Corporate Debtor namely ICICI Bank Limited filed a Company Petition being CP (IB) No. 53/2017 under Section 7 of the IB Code before this Adjudicating Authority, which was admitted on 01.08.2017. Accordingly, the CIRP proceeding is started under Section 13 r.w. Section 14 of the IB Code, wherein, Mr. Sundaresh Bhatt was appointed as IRP. On appointment of the IRP, public announcement was made and in view of the said public announcement, the Applicant filed his claim as Financial Creditor in the requisite Form-C dated 16.08.2017 before the IRP, which was duly received by the IRP and IRP has also admitted the claim of the Applicant in its entirety as Secured Creditor and the same was reflected in the list of the stakeholder as on 30.11.2018 provided by the IRP to all the stakeholders including the Applicant during the 19th COC meeting held on 17.12.2018. 10. It is further submitted....
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....as been classified as unsecured without providing any reason whatsoever. The copies of the Security Verification of Financial Claims are annexed as Annexure-"K(Colly.)". 13. It is further contended that on coming to know about such arbitrary action of the Applicant, the Applicant has sent e-mail on 09.11.2020 to the liquidator seeking clarification with regard to the fact that, even though, during the CIRP, the Applicant was categorized as 'Secured', by the said claim, Applicant has been categorised as 'Unsecured' during the liquidation proceeding. To that effect, the Applicant has conveyed that such categorization was incomprehensible in view of the exclusive charge on Shipping Subsidy, which was created in favour of the Applicant by the Corporate Debtor, to which the opponent informed that based on the legal information provided by the legal advisor of the Opponent on 23rd October, 2020 in respect of Shipping Subsidy classification and based on the said opinion, it was further informed that the shipping subsidy would thus form part of liquidation estate and the same would be distributed as per the provision of Section 53 of IB Code. The said e-mail dated 20.11.20....
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....inancial creditor in the liquidation process of the Corporate Debtor. 19. It is further submitted by the Respondent that in terms of Section 42 of Insolvency and Bankruptcy Code, 2016, a creditor may appeal to the Hon'ble NCLT(hereinafter referred to as the "Tribunal"/"Adjudicating Authority") against the decision of the liquidator, either accepting or rejecting the claims, within 14 days of the receipt of such decision, it is further alleged that the present application is being filed in blatant disregard and contravention of the aforesaid Section 42 of the Code and is liable to be dismissed on this ground alone. 20. It is submitted by the Respondent that in the 21st meeting of the CoC, the resolution was passed recommending the liquidation of the Corporate Debtor and in view of such resolution, this Adjudicating Authority passed an order on 25th April, 2019 (hereinafter referred to as "Liquidation Commencement Date") and appointed the Respondent as Liquidator. 21. Pursuant to such liquidation process, the Liquidator made public announcement on 3rd May, 2019 and received claims from various creditors, inter alia, the Applicant vide its Form-D dated 23rd May, 2020. In view o....
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....otally failed to demonstrate sufficient cause or provide any cogent reason before this Adjudicating Authority, so as to exercise its jurisdiction in granting relief under the present application. 25. It is further alleged that, on one hand, the Applicant seeks direction of this Adjudicating Authority to stall the ongoing liquidation process of the Corporate Debtor and, on the other hand, has provided no justification, whatsoever, took towards the undue delay of 551 days in filing the present application. 26. It is further alleged by the Respondent that the Applicant has concealed the fact of the present application being time barred, with an attempt to mislead this Adjudicating Authority in exercising its power in granting relief. Hence, the Applicant is not entitled for any relief, keeping in view that the liquidation process is to be completed in a time bound manner. 27. The Liquidator/Respondent in terms of Regulation 12 of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulation 2016 issued a public announcement on 3rd May, 2019 in various national and vernacular dailies and requested all the stakeholders to file their claims with proof on or before 29th....
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....e filings with the authorities) and the issuance of such letter by the Applicant, cannot operate so as to override the express provisions of the law and that does not enjoin the liquidator to recognize the claim of the Applicant as secured creditor in absence of prescribed and mandatory filings required under law in relation to creation of security under which the Applicant has not complied. 30. It is further submitted by the liquidator that, the liquidator had published a tentative summary of claims, received in the liquidation process of the Corporate Debtor, wherein, the details of the creditors relating to claim amount, estimated claim, claim on hold or claim rejected. The said summary was published on the website of the Corporate Debtor on June 28, 2019 and those are subject to the submission of satisfactory replies to the queries sent by the liquidator to the Applicant. That apart, the Respondent/Liquidator on June 29, 2019 had published a list of claims of financial creditors (herein after referred to as the "Final List") reflected the details pertaining to the adjudication and classification of the claim in the liquidation process and in which list, the Applicant was categ....
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.... furnish any such document till the filing of the reply in support of the security interest. In view of that, the present application is bad in the eye of law. Further Section 77(3) of the Companies Act, 2013 expressly provides that no charge created by a company shall be taken into account by the liquidator appointed under Companies Act or Insolvency and Bankruptcy Code 2016, as the case may be, or any other creditor, unless it is duly registered under sub-section (1) of Section 77 and a certificate of registration of such charge is given by the Registrar under sub-section(2) of Section 77 of the Companies Act, 2013 has been reproduced herein below: "Section 77-Duty to Register Charges, etc. (1) It shall be the duty of every company creating a charge within or outside India, on its property or assets or any of its undertakings, whether tangible or otherwise, and situated in or outside India, to register the particulars of the charge signed by the company and the charge-holder together with the instruments, if any, creating such charge in such form, on payment of such fees and in such manner as may be prescribed, with the Registrar within thirty days of its creation: Provided....
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....ance with the provisions of Section 77(3) of the Companies Act and Regulation 21 of the Liquidation Regulations, is bound to reject the claim submitted by the Applicant as a secured claim. While filing the instant application, the Applicant has miserably failed to explain the reason of delay in filing the instant application and also not prayed for any condonation of delay for the same. 36. The Liquidator has relied upon the various case laws, wherein, the Hon'ble Supreme Court of India in Kerala State Financial Enterprises Ltd. Vs. Official Liquidator, High Court of Kerala [ (2006) 10 SCC 709], whereby it has held by the Hon'ble Supreme Court (in the context of Section 125 of the Companies Act 1956 corresponding to Section 77 of the Companies Act, 2013) that: "Ordinary a charge should be registered in terms of Section 125 of the Act. If the charges are not registered the same would be void against the liquidator or creditors." The above-mentioned position with respect to registration of the charge viz-a-viz acceptance of security interest in the liquidation process of any company, has been followed by the Hon'ble National Company Law Appellate Tribunal in India Bu....