TaxTMI 
TaxTMI 
TaxTMI 
2023 (2) TMI 186
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....e case necessary to be noted for deciding this Appeal are:- (i) The 'Corporate Insolvency Resolution Process' against the Corporate Debtor-Eastern Gases Limited commenced on 08.11.2017. (ii) The Appellant had sanctioned overdraft facility, short term loan and long term loan to the Corporate Debtor. An order of liquidation was passed by the Adjudicating Authority on 21.08.2018. Public Announcement was made by the Liquidator in Form-B on 26.08.2018. The Appellant on 18.09.2018 filed his claim in Form-D containing the total claim of the Appellant, of principal along with interest of different facilities extended to the Corporate Debtor. (iii) The Appellant informed the Liquidator on 08.04.2019 about its decision to realize its security interest as per Section 52 (i)(b) of the Code in respect of long term loan by remaining outside the liquidation process to realize its debts. Liquidator agreed to hand over possession of assets to the Appellant. Appellant informed the Liquidator that realization of security interest would happen at a rate of Rs. 14.44 Crore. The liquidator informed the Appellant that no person has approached the liquidator willing to buy the assets at price higher....
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.... in addition to the amount which was claimed in the Form D till date of actual realization was made by the Appellant. It is submitted that as per terms of contract between the Appellant and the Corporate Debtor, Appellant could have charged the interest up to date of realization of the amount and the Adjudicating Authority erred in issuing direction to return the amount of interest retained by the Appellant. 4. Learned Counsel for the Liquidator refuting the submissions of Learned Counsel for the Appellant submits that Appellant is only entitled for the amount as was claimed in Form D on the Liquidation Commencement Date. Appellant can not claim any amount above the amount as was claimed in Form D. Appellant can not claim entitlement of any interest as per the term of contract subsequent to filing of the claim in Form D till the date the amount was realized by the Appellant. The Adjudicating Authority has rightly after considering the relevant provisions has issued direction to make the payment of the amount illegally retained by the Appellant. 5. We have considered the submissions of Learned Counsel for the parties and have perused the record. 6. Only question to be answered in....
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....b) realise its security interest in the manner specified in this section. ........... (4) A secured creditor may enforce, realise, settle, compromise or deal with the secured assets in accordance with such law as applicable to the security interest being realised and to the secured creditor and apply the proceeds to recover the debts due to it. .......... (6) The Adjudicating Authority, on the receipt of an application from a secured creditor under sub-section (5) may pass such order as may be necessary to permit a secured creditor to realise security interest in accordance with law for the time being in force. (7) Where the enforcement of the security interest under sub-section (4) yields an amount by way of proceeds which is in excess of the debts due to the secured creditor, the secured creditor shall- (a) account to the liquidator for such surplus; and (b) tender to the liquidator any surplus funds received from the enforcement of such secured assets. (8) The amount of insolvency resolution process costs, due from secured creditors who realise their security interests in the manner provided in this section, shall be deducted from the proceeds of any real....
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....asis of- (a) the records available in an information utility, if any; or (b) other relevant documents which adequately establish the debt, including any or all of the following- (i) a financial contract supported by financial statements as evidence of the debt; (ii) a record evidencing that the amounts committed by the financial creditor to the corporate debtor under a facility has been drawn by the corporate debtor; (iii) financial statements showing that the debt has not been repaid; and (iv) an order of a court or tribunal that has adjudicated upon the non-payment of a debt, if any." 16. Form D which is statutory form for proof of claim by Financial Creditor. Item No. 3 of Form D provides as follows: 3. TOTAL AMOUNT OF CLAIM, INCLUDING ANY INTEREST, AS AT THE LIQUIDATION COMMENCEMENT DATE AND DETAILS OF NATURE OF CLAIM (WHETHER TERM LOAN, SECURED, UNSECURED) PRINCIPAL: INTEREST: TOTAL CLAIM: 17. Form D also clearly mentions that total amount of claim including an interest, "As At The Liquidation Commencement Date". The Liquidation Regulation thus clearly contemplated the claim which also includes the interest "As At The Liquidation Commencement Date". ....