TaxTMI 
TaxTMI 
2025 (11) TMI 609
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.... filed by RP, whereas, IA (I.B.C)/548(KB)2024 was filed by the appellant, ICICI Bank. Adjudicating Authority by the impugned order allowed and disposed of both the applications. Aggrieved by the order, ICICI Bank has come up in this appeal. 3. Brief background facts necessary to be noticed for deciding the appeal are: i. The corporate debtor Darjeeling Organic Tea Limited approached the ICICI Bank for non-fund based facilities. The facility was extended by the Bank on the fixed deposit given by the corporate debtor. ii. On 31.07.2021, corporate debtor approached the Bank for overdraft facility. Overdraft facility of Rs. 1,00,00,000/- was extended against cash collateral of fixed deposit of Rs. 1,06,00,000/-. iii. Corporate Insolvency Resolution Process (CIRP) against the corporate debtor commenced on 28.10.2022 by order passed by NCLT Kolkata. iv. The appellant filed its claim on 03.01.2024 in 'Form-C' as a financial creditor. In the claim form, appellant claimed it to be a secured creditor. Claim was filed for an amount of Rs. 99,36,968.09/- as on 28.10.2022. Claim form mentioned the non-fund based Bank Guarantee as well as fixed deposit. ....
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.... has drawn attention to page no. 67 of IA(I.B.C)/2093(KB)2023 whereby the RP has requested the ICICI Bank to release the following amounts: i. FD Account No. 018713007341 : INR 6.52 Lacs; ii. FD Ale No. 694713013846: INR 108.65 Lacs; iii. FD Ale No. 018713007339: INR 14.40 Lacs and iv. Amount received in Overdraft Ale No. 018705009903 post CIRP commencement date of28.10.2022: INR 67424.80 e. Ld. Counsel for the ICICI Bank requests to the Adjudicating Authority to allow it to retain the item mentioned at (iii) against the bank guarantee that has been issued. Therefore, we feel that the funds should be released in terms of (i), (ii) and (iv) above, immediately. f. In view of the Order passed in this matter, it is directed that the bank will release the deposits lying with them against serial no. (i), (ii) and (iv). g. Accordingly, IA(I.B.C)/2093(KB)2023 and IA(I.B.C)/548(KB)2024 are allowed and disposed of to the extent mentioned above." 4. Learned counsel for the appellant challenging the order submits that the fund based facility which was extended by the Bank was on the basis of fixed deposit given by the corporate ....
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....the claim form give the details of the amount of the claim and facilities extended by the bank. Item No. 4 of the 'Form-C' is as follows: Relevant Particulars (1) (2) (3) 4. Details of claim, if it is made against corporate debtor as principal borrower: (i) Amount of claim (ii) Amount of claim covered by security interest, if any (Please provide details of security interest, the value of the security, and the date it was given) (iii) Amount of claim covered by guarantee, if any (Please provide details of guarantee held, the value of the guarantee, and the date it was given) (iv) Name and address of the guarantor(s) Overdraft (OD) facility with outstanding of Rs. 99,36,968.09 (Rupees Ninety Nine Lakh Thirty Six Thousand Nine Hundred Sixty Eight and Nine Paisa) as on October 28, 2022. The Overdraft facility is secured by cash collateral, as detailed below: FD A/c no.- 694713013846 dated July 26, 2021 for Rs.1,00,00,000/- FD A/c no- 018713007341 dated July 30, 2021 for Rs.6,00,000/-, Amount of claim: Rs.99,36,968.09 (Rupees Ninety Nine Lakh Thirty Six Thousand Nine Hundred Sixty Eight and Nine Paisa) as on October 28, 2022. In add....
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....n or right to set-off to which ICICI Bank is or may by law or otherwise be entitled or any rights or remedies of ICICI Bank including in respect of any present or future security, guarantee, obligations of the Borrower/Depositor." 9. The claim form having clearly mentioned the overdraft facility against the fixed deposit, fixed deposit given by the corporate debtor, which are maintained in different account is a security of the Bank. In event, the amount which was secured deposit, the RP has filed the application without deciding the status of the appellant as secured creditor and was praying for release of the said amount maintained in the fixed deposit in the account of corporate debtor by its application, which has been partly allowed by the adjudicating authority. 10. Learned counsel for the RP has relied on the application filed by the ICICI Bank especially paragraph 10. We need to notice paragraphs 9 and 10 of the application, which is as follows: "9. It is submitted that the applicant is a financial creditor, and a Secured overdraft facility availed by the corporate debtor was secured by way of cash collateral in the form of Fixed Deposits of Rs. 1,00,00,000/-....
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....as been placed, Bank never agreed to release the account in the security to the corporate debtor, rather the statement was that applicant financial creditor can give up its security provided that it retain its status of secured financial creditor and that for the resolution of the corporate debtor. It is settled position that all security interest maintained which are possessed by the financial creditor can be dealt in the resolution plan in accordance with the CIRP Regulations, 2016. Hence the statement made in paragraph 10 cannot be treated to be any admission or concession that the amount which are laying in the fixed deposit of the corporate debtor in the bank be released to the corporate debtor on an application filed by the RP. 12. The submission of the counsel for the RP that there was concession given by the counsel for the appellant before the adjudicating authority for release of item Nos. 1, 2 & 4 also does not appeal to us. In paragraph (e) as noted above counsel for the Bank requested the adjudicating authority allowed to retain item mentioned at No. 3 against the bank guarantee that has been issued. 13. Counsel for the appellant submitted that item Nos. 1 & 2 ar....