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2019 (5) TMI 1749 - Tri - Insolvency and BankruptcyRecovery of dues - charge over the properties - liquidator submits that the applicant is the sole first charge holder of the immovable property of the corporate debtor at Mysore and the movable fixed assets of the corporate debtor - Whether the applicant is entitled to realize their security interest in the manner specified under section 52(1)(b) read with regulation 37 of the IBBI (Liquidation process) Regulations, 2016? - HELD THAT:- The most important aspect of the realization of security interest by the secured creditor who is having the first charge is to be verified and vetted by the liquidator who in this particular case had verified the same in terms of section 52(3) of the Insolvency and Bankruptcy Code, 2016 and in all categorical terms ascertained that the applicant is the first charge holder of the fixed assets of the corporate debtor - the applicant is entitled to realize their security interest under section 52(1)(b) read with regulation 37 of the IBBI (Liquidation Process) Regulations, 2016. The issue is decided in favour of the applicant - As regards the current assets, it is held that the applicant does not have the first charge. Whether this Tribunal has jurisdiction to determine on the issue of disputed question of fact as to who the first charge holder is? - HELD THAT:- There is not a single document which raises even an iota of doubt as to the question who the first charge holder is. When the entire documents are in favour of the applicant, excepting a frivolous/untenable claim by the Edelweiss on the issue of first charge does not create a bar on this Tribunal to decide the issue as to who is the first charge holder on the basis of uncontradictable/undisputable documentation. First of all there is no tenable dispute as regards the facts in question for the reason all the documents are uncontradictable and the genuine of the same is not in question. Even otherwise, it is held that it is the exclusive prerogative of this Tribunal which is exclusively vested with the power to adjudicate the matters relating to and connected with the insolvency and bankruptcy law particularly the process of liquidation and the related measures to be adopted in the said process of liquidation. This is just not a substantive law but also a procedural law. Thus, this Tribunal can decide on the issues of disputed question of fact when the documents unequivocally prove the point that is sought to be decided. The so-called dispute raised by the Edelweiss is just frivolous and is hereby rejected. The applicant is entitled to realize their security interest as provided under section 52(1)(b) read with regulation 37 of the IBBI (Liquidation Process) Regulations, 2016 - Decided in favor of applicant.
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