TaxTMI 
TaxTMI 
TaxTMI 
2025 (3) TMI 1613
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....Resolution Applicant of Corporate Debtor seeking direction to liquidate the Fixed Deposit dated 09.03.2017 and transfer the amount of Rs 42 lakhs alongwith accrued interest to the Appellant and declare the purported claim of Respondent No.1-Debenture Trustee to stand extinguished. Aggrieved by the impugned order, the present appeal has been preferred by the Appellant- Mangalam Global Enterprise Ltd. 2. To capture the salient facts of the case, we find that a Section 9 petition seeking initiation of CIRP against the Corporate Debtor-H.M. Industrial Pvt. Ltd. was admitted by the Adjudicating Authority on 07.06.2019 following which an Interim Resolution Professional was appointed. On 14.06.2019, the IRP made a Public Announcement in Form-A inviting claims from the creditors of the Corporate Debtor. On 10.07.2019, the first CoC meeting replaced the IRP with Resolution Professional ("RP" in short). On 04.11.2019, the Respondent No.3-RP shared the Information Memorandum under Regulation 36 of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulation, 2016 with the Appellant alongwith the assets and liabilities and the audited Balance Sheets of t....
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....re aware of this factum of FD of 09.03.2017 being an asset of the Corporate Debtor while submitting their resolution plan. Thus, all assets of the Corporate Debtor as specified in the Information Memorandum including the said FD formed part of the plan and in support of their contention reliance was placed on the judgement of this Tribunal in Kanoria Energy & Infrastructure Ltd. Vs Avishek Gupta & Ors. in CA(AT)(Ins.) No. 281 of 2024. Further, it was asserted that the Respondent No.1 had failed to produce any document before the Adjudicating Authority to establish that any lien or charge was created on the FD. Submission was further pressed that the Respondent No.1 had failed to file its claim with the RP during the CIRP of the Corporate Debtor. It was asserted that the list of claimants maintained by RP did not show either the Debenture holders or the Debenture Trustee/Catalyst Trusteeship Ltd.-Respondent No.1 to have filed any claim with the RP. Having failed to assert claim regarding purported lien over the FD, the claim of Respondent No.1 stands extinguished upon the approval of the resolution plan. It was asserted that post approval and implementation of the resolution plan, r....
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....ution plan did not contain any clause providing for transfer, appropriation or vesting of the FD in favour of the Appellant, it was also asserted that since the FD was held by Respondent No.1 as a pledgee for the benefit of the debenture holder, the FD could be adjusted against the dues by the Respondent No.1 without the need to file claims with the RP. Submission was also made that Respondent No.1 could not file their claim during CIRP since the management of the Respondent No.1 was undergoing various changes and shifts due to which there were unaware of the admission of the Corporate Debtor into CIRP. It was also added that even if the debenture holders had not filed their claim, it does not affect the claim of debenture trustee representing the debenture holder from acting for and on behalf of the debenture holders and to hold and enforce securities created by the Corporate Debtor. 6. We have duly considered the arguments advanced by the Ld. Counsels for the parties and perused the records carefully. 7. The narrow compass that requires our consideration is whether the FD dated 09.03.2017 formed part of the assets of the Corporate Debtor or otherwise and whether the decisio....
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....018 31/03/2017 AMT(RS.) AMT(RS.) Bank Of Baroda-FDR 33,660,443 32,025,616 Bank Of Baroda FDR-S S Div 104,109,621 4,215,191 Bank Of Baroda FDR-(LC)S S Div 18,950,080 Axis Bank FDR 3,022,728 S.E. Investments limited 750,000 750,000 160,492,872 36,990,807 From a plain reading of the above table, it is apparent that FDRs were not depicted individually but a consolidated amount in respect of FDRs was reflected in the balance sheet of the Corporate Debtor as on 31.03.2018. 12. Be that as it may, when we further peruse the affidavit submitted by Respondent No.2-Bank of Baroda before the Adjudicating Authority as placed on record at page 654-656 of APB, it becomes clear that the Corporate Debtor had deposited an amount of Rs 42 lakhs as FD with them vide FDR No. 0579539 on 09.03.2017 with date of maturity on 09.09.2020 which was subsequently renewed from time to time. The relevant excerpts from the said affidavit is as reproduced hereunder: "2. I humbly say and submit that the Corporate Debtor in C.P. (I.B.) 81 of 2019 (being H.M. Industrial Pvt. Ltd.) had deposited an amount of Rs.....
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....No.1 had failed to produce any document before the Adjudicating Authority to establish that any lien or charge was created on the FD. Nor did the Respondent No.1 file any claim regarding purported lien over the FD. The FD in the present case was never encumbered as margin money, nor was it subjected to any security interest or earmarked as security for any Letter of Credit or Bank Guarantee. The Adjudicating Authority therefore wrongly relied on the judgment of this Tribunal in Punjab National Bank judgment supra to hold that the Appellant was not entitled to the FD amount as it was kept as a security like margin money. 16. To come to our analysis and findings, it would be useful at this stage to have a look at the affidavit of the Respondent No.2-Bank of Baroda as placed at page 654-656 of APB as extracted below: "5. The Successful Resolution Applicant has preferred the present application before this Hon'ble Court claiming for the Said FD and which is objected by the respondent no.1 but it is clarified here that the respondent no.2 Bank that it has not created any lien on the Said FD and thus Bank being merely a custodian of the Said FD, it shall be duty bound to ....
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....supra regarding margin money being construed as substratum of a trust for the benefit of the beneficiary does not apply in the present case as the FD was never earmarked for a specific purpose as security for any Letter of Credit or Bank Guarantee or as a separate and distinct fund for meeting any specific obligation and hence could not have been treated as margin money. Unlike margin money, which is specifically segregated for a designated beneficiary, the FD was never placed in a trust-like structure and therefore remained an asset of the Corporate Debtor. We are therefore not in a position to agree that the FD was kept as a security to meet obligations arising out of the issue of debentures. 18. It is also of significance to notice that the Respondent No.1 had not filed any claim with the RP during the CIRP of the Corporate Debtor regarding its purported lien over the said FD. The Adjudicating Authority at para 24 of the impugned order has also noticed that the Respondent No.1 had admittedly not filed any claim before the RP with respect to the FD of 09.03.2017. The reasons given by Respondent No. 1 for their not filing the claim is not relevant for our consideration. It is w....
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....d. Moreover, when the resolution plan was never challenged and had attained finality, the claim of Respondent No.1 with respect to FD of 09.03.2017 not having been made before approval of the plan, the said FD becomes an asset of the Corporate Debtor which could not have been interfered with by the Adjudicating Authority. If the Respondent No.1 did not file their claim before the RP, they cannot be seen to oppose the release of lien in favour of the Appellant particularly so when the Adjudicating Authority in the impugned order at para 22 has itself noticed that the Appellant has fully implemented the plan and was in control of the Corporate Debtor since 2022-2023. Hence, the impugned order by not allowing liquidation of the FD and transfer of the monies therein to the Appellant cannot be sustained. We are therefore of the considered view that when the plan has already been approved by both the CoC and the Adjudicating Authority, it cannot be altered now on the basis of claims which had not been pursued by the Respondent No.1. After the resolution plan is approved by the Adjudicating Authority, no indulgence was warranted to be shown to Respondent No.1 with respect to FD of 09.03.2....