TaxTMI 
TaxTMI 
2024 (1) TMI 832
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....te For Ms. K. Jayasudha, Advocate For Appellant in CA (AT) (CH) (Ins.) Nos. 375 & 376/2023 & Applicant in IA No. 1371 and 1341/2023 For the Respondents : Mr. E. Om Prakash, Senior Advocate For Mr. Srinivasan, Advocate For R1 in CA (AT) (CH) (Ins.) Nos. 375 & 376/2023 Respondent No.1 in IA No. 1371/2023 Respondent No. 3 in IA No. 1341/2023 Ms. Elamathi, Advocate, For Liquidator/ R2 in CA (AT) (CH) (Ins.) No. 375/2023 and for Liquidator/R4 in CA (AT) (CH) (Ins.) No. 376/2023 Respondent No. 2 in IA No. 1371/2023 Respondent No. 4 in IA No. 1341/2023 ORDER ( Hybrid Mode ) [ Per : Shreesha Merla, Member (Technical)] 1. Aggrieved by the Impugned Order in IA/IBC/919(CHE)/2022 in IBA/812/2020 dated 12.09.2023 and in IA/IBC/1779/CHE/2023 in IA/IBC/669/CHE/2022 in IBA/812/2020 dated 11.10.2023, respectively passed by the Adjudicating Authority / Tribunal, NCLT, Bench - II, Chennai, Reliance Commercial Finance Limited, preferred these Appeals. Since both these Appeals refer to common facts and issues, they are being disposed of by this Common Order. IA(IBC)/919/CHE/2022 in IBA/812/2020 & IA(IBC)/972/CHE/2022 in IBA/826/2020, were preferred by the Resolution Professional (`RP') of J....
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....d at the time of handing over of the respective units. If the customers are not interested in registering the flat and would like to cancel the sale, the same can be cancelled and the flat should be allowed to be resold and the proceeds from the re-sale should be utilized for completion of the pending work. Refund for such uninterested homebuyers shall be made from the proceeds available in the 'GRT Grand' account, only after completion of the entire project and obtaining a completion certificate and not before. d. If no intimation is received from the unregistered homebuyers, within a period of 14 days, the allotment should be treated as cancelled and the flat should be allowed to be resold and the proceeds from the re-sale should be utilized for completion of the pending work. Refund for such uninterested homebuyers shall be made from the proceeds available in the 'GRT Grand' account, only after completion of the entire project and obtaining a completion certificate and not before. vi. The entire proceeds/receivables collected in respect of the project GRT Grand shall be deposited only in the 'GRT Grand' account and not in any of the Liquidation accoun....
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....on of Financial Assets and Enforcement of Security Interest Act, 2002 or under other applicable laws, pending disposal of IA/IBC/669/CHE/2022 before this Hon'ble Tribunal. b. Pass an interim injunction restraining the 2nd Respondent from transferring or assigning its entitlement and interest in recovering the Second Loan of Rs.7,96,81,736/- and rights under the memorandum of deposit of title deeds dated 30.06.2017 registered as document no.6543 of 2017 and deed of hypothecation dated 28.04.2015, pending disposal of IA/IBC/669/CHE/2022 before this Hon'ble Tribunal. c. Pass an order directing the 2nd Respondent to deposit all title deeds and other documents relating to the Secured Asset as more fully described in the memorandum of deposit of title deeds dated 30.06.2017 registered as document no.6543 of 2017, with the Liquidator Mr. Venkataraman Subramanian pending disposal of IA/IBC/669/CHE/2022 before this Hon'ble Tribunal. d. Pass any such order(s) or direction(s) that this Hon'ble Tribunal may deem fit in light of the facts and circumstances of the case."" (Emphasis Supplied) 4. The Adjudicating Authority has observed that since the Liquidator has started....
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.... through the Tripartite Agreement and LICHFL also issued a No Objection Certificate (NOC) for ceding of the 1st Charge, in favour of the Appellant by Letter dated 14.06.2017 for the purpose of effecting the mortgage. 7. It is further submitted that as the Corporate Debtor could not discharge the 1st Loan, had sought for restructuring of the said `Project Loan', the Appellant, on the request of the Corporate Debtor has sanctioned a `Construction Loan' of Rs.7,96,81,736/- in lieu of the Outstanding Loan Amount due. It is submitted that the Appellant through its Letter dated 12.03.2019 had conveyed the restructuring of the loan facilities to the LICHFL and the Corporate Debtor vide Letter dated 20.03.2019 also sought for an NOC with respect to the said restructuring. The Loan Account of the Corporate Debtor had become an NPA on 23.03.2021 and due to the Default in Repayment of the Loan Dues, the Appellant on 18.06.2021, had issued a Notice under Section 13(2) of the SARFAESI Act, 2002, recalling the Loan amount payable and the same was also communicated to LICHFL as per the terms of the Tripartite Agreement. After the Loan amount become NPA and initiation of SARFAESI measures for rec....
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....eclaratory Reliefs sought for by the First Respondent are `Inter se' disputes, between the Creditors and the Adjudicating Authority does not have Jurisdiction to entertain these disputes and the subject Reliefs can be granted only by Civil Courts. It is the further case of the Appellants that the 2nd Loan is not a fresh Loan and it was given in lieu of the default committed by the Corporate Debtor in servicing the 1st Loan and therefore, it was to be construed as a restructuring of the 1st Loan as evinced in the Letters dated 12.03.2019 & 20.03.2019. It is also the case of the Appellants that in terms of the Tripartite Agreement dated 14.06.2017, the Appellant is entitled to retain the Security Interest over the Secured Assets for the 2nd Loan. It was argued by the Learned Senior Counsel that the First Respondent had remained silent from 12.03.2019 to 11.08.2021 and therefore, it has to be construed that the First Respondent had consented to the Appellants 1st Charge, by acquiesce. 11. The Learned Senior Counsel Mr. E. Om Prakash, appearing for the First Respondent and Ms. Elamathi, Learned Counsel appearing for the Liquidator strongly supported the Impugned Orders challenged in t....
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....on of the Project, a direction was issued to restrain the Appellant from enforcing the Security Interest and to handover the Title Deeds to the Liquidator. 14. It is argued by the Learned Senior Counsel of the First Respondent that the Sanction Letter dated 31.01.2019 clearly states that the 2nd Loan is a new Construction Finance Loan and there is no reference to the restructuring of the 1st Loan in the Sanction Letter and that this Sanction Letter required a Fresh NOC which was never given and therefore, both the Loans are distinct and different. In fact, in the email dated 13.03.2019, the Appellant admitted that it did not have the 1st Charge over the Project and requested the First Respondent to issue a Fresh NOC ceding the Charge. It is contended that the Tripartite Agreement was in relation to the 1st Loan only and that the Adjudicating Authority has the Jurisdiction to decide the `Inter se' disputes, between the `Creditors', under Section 60(5) of the I & B Code, 2016 and such disputes need not be relegated to a Civil Court. Assessment : 15. The main issue which falls for consideration in these Appeals is whether, the 2nd Loan is a Fresh Loan or whether it was given in li....
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....21. The Tripartite Agreement relied upon by the Learned Senior Counsel for the Appellants is with respect to an amount of Rs.11 Crores sanctioned for the purpose of Construction Finance, against which, an NOC was also issued on 14.06.2017. It is clearly recorded that upon payment of the 1st Loan, the First Respondent would become the 1st Charge Holder and the Appellant is required to handover the Title documents. The record establishes that the 1st Loan was `closed' and the amount paid. This is further substantiated by the fact that the Mortgage Deed is confined only to the 1st Loan and the fact that specific requests were made for Issuance of Fresh NOC from the First Respondent and a Fresh Mortgage and ROC Charge Registration. 22. Subsequently, after the matters were heard at length and the Appeals were Reserved for Orders on 01.12.2023 and the Parties were requested to file their short Written Submissions with relevant Citations, the Appellants filed IA No. 1371 / 2023 in Company Appeal (AT) (CH) (INS) No. 375 / 2023 and IA No. 1341 / 2023 in Company Appeal (AT) (CH) (INS) No. 376 / 2023, seeking to Re-open the matter and Re-hear the same. A Notice was issued on these Applicatio....