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2019 (8) TMI 1746 - Tri - Insolvency and BankruptcySeeking permission to allow Resolution Applicant to withdraw the Resolution Plan - Seeking direction to Resolution Professional to return / refund the Bank Guarantee and the Earnest Money and 10% of the total consideration deposited by the Applicant - Section 60(5) of IBC, 2016 R/w Rule 11 of NCLT Rules, 2016 - HELD THAT:- This Tribunal approved the Resolution Plan of the Resolution Applicant on 04.06.2019. The Resolution Applicant filed Applications seeking certain clarification for successful implementation of the Resolution Plan. The Resolution Applicant is allowed to take over all the immovable assets including lease rights mortgaged to secured creditors etc. So, the lease hold rights held by the Corporate Debtor will be automatically taken over by the Resolution Applicant - the creditors to assign the interest rights and obligation arising out of Corporate Guarantee given by M/s. Aster Private Limited to be assigned in favour of Resolution Applicant. It is very clear as per Section 101 of Transfer of Property Act, no subsequent mortgagee or charge holder shall pay to foreclose or sale of such property without redeeming the prior mortgage or charge. If the contention of the Resolution Applicant is correct that ICICI Bank Ltd issued notice under Section 13(2) of SARFAESI Act to the subsequent charge holder, then it is bound to clear the 1st mortgage or charge which is to be transferred in favour of Resolution Applicant on payment of upfront amount. Thus, law is very clear that subsequent mortgage or charge holder can only proceed over the property only when it discharge the prior mortgage. Actually Resolution Plan provides all details and Resolution Applicant submitted the plan after seeing the Information Memorandum. There is no question of giving permission to Resolution Applicant to withdraw from the Resolution Plan. Already it has paid 10% of the upfront amount. Secondly, it has also given Bank Guarantee. The Plan was approved on 04.06.2019. Because of pendency of these Applications, there is a delay of payment of balance upfront amount. Having filed Resolution Plan which was considered by the CoC who approved the same and really there is no material concealment of any matter concerning the Corporate Debtor. Application disposed off.
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