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2019 (10) TMI 1363 - NATIONAL COMPANY LAW TRIBUNAL , CHENNAI BENCHEquitable treatment to the Applicant as against the other Financial Creditors - case of these Applicants is that since the Corporate Debtor has entered into a registered agreement of sale to sell flats, they shall be considered as secured creditors because sale agreement has been executed in favour of these Creditors - HELD THAT:- It has been holding that if classification is permissible by change of the character of the obligation between the parties, such classification can neither be erased nor invented by the court. Therefore, this Bench on its own, cannot read into something that is not present in the Code. When Section 53 of the Code is very clear that secured creditors are placed ahead of other creditors, now this Bench cannot upgrade anybody to any position other than the position already law mandates. In this case, it is no doubt the applicants invested money for returns through MoU dated 29.01.2015 and also simultaneously entered into Registered Sale Agreements dated 29.01.2015, the Corporate Debtor agreeing to sell undivided share of vacant land in Schedule-B of that Agreement, but it does not reflect creation of charge or passing of interest in favour of these applicants, indeed one of the sale agreements reflects that charge is in force in favour of Tata Capital Housing Finance Limited - After having verified the MoU dated 29.01.2015 and Registered Sale Agreement dated 29.01.2015, since we have not found anywhere creation of any kind of charge over the asset, these Applicants cannot insist upon the Resolution Professional or the CoC to consider them as secured creditors. If they are not shown as secured creditors based on the two documents afore mentioned, their candidature cannot be called as secured creditors. These Creditors are not entitled to be shown as secured creditors for no interest over the asset of the Corporate Debtor has been conveyed to these two creditors having only 2.24% voting rights in the CoC and they cannot restrain the actions of the majority of the CoC members - Application dismissed.
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