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2020 (11) TMI 671 - Tri - Insolvency and BankruptcyLiquidation order - no privity of contract - financial debt - Applicant Bank has claimed that it has got absolute right to file claim Petition before the Liquidator and the said claim is squarely falling within the purview of "financial debt" and alleged that the Liquidator has erroneously rejected the claim Petition on the ground that there is no privity of contract between 1st and 2nd Respondents - HELD THAT:- The Appellant Bank has filed its claim in relation to the dues pending from COGIL before the Liquidator of NOCL. However, COGIL had filed its claim before the Liquidator, which stood rejected and against the said order of rejection, no appeal seems to have been preferred by COGIL before this Tribunal. Since COGIL has filed its claim before the Liquidator of NOCL, it will not in any way entitle the Appellant Bank to make a claim in relation to the COGIL vis-avis the company under liquidation with the Liquidator of the NOCL. The recourse if at all can be only against the COGIL in relation to the debts owed to the Appellant and not against NOCL, unless the said company, namely NOCL has stood as a guarantor/surety to the loan and financial facilities by the Appellant to COGIL. From a careful perusal of the pleadings as contained in the Appeal nothing comes to the fore to the said effect. Further, it is also required to be seen, eventhough a valiant effort was made by the Learned Counsel for the Appellant to bring in the aspect of privity and proximity of NOCL to the debts of COGIL owed to the Appellant in relation to the aspect of security by way of mortgage of lands sub-let by NOCL to COGIL with the concurrence of SIPCOT of the leased portion, however even from the said angle, the 1st Respondent Company under liquidation through its Liquidator and its creditors cannot be bound in terms of Section 125 of the Companies Act, 1956 or under Section 77 of the Companies Act, 2013 in view of the absence of Registration of charge with the concerned Registrar of Companies in relation to the assets charged, even assuming if there is any, in the absence of any privity to the contract as between COGIL and the Appellant. It is seen that a charge of Equitable Mortgage by deposit of title deeds was created by COGIL in favour of the Appellant Bank in respect of the properties which were leased out by NOCL to COGIL. However, from the claim form filed in Form D by the Appellant Bank with the Liquidator on 10.01.2019, in relation to the details of debt incurred, it is stated that COGIL had availed term loan disbursed on 02.09.2011. In relation to dates giving rise to cause of action, if assuming if there is any, as against NOCL, nothing more has been specified as to when the debt of the Appellant Bank has become due and payable - Further, from the records, it is evident that the Appellant Bank has relied on the letter of rejection of the Liquidator dated 11.05.2020. As per Section 42 of IBC, 2016, an Appeal against the order of Liquidator has to be filed within a period of 14 days from the date of decision of the Liquidator. Apparently, it is seen that the Appellant Bank has filed the present Appeal via email before the Registry of this Tribunal on 11.06.2020 and there has been a delay of 17 days on the part of the Appellant Bank in filing the present Appeal before this Tribunal and also it is evident from the records that no Application seeking for condonation of delay has been filed by the Appellant Bank before this Tribunal. In absence of any specific Application seeking for condonation of delay having been filed by the Applicant in approaching this Tribunal by way of an Appeal against the Order of rejection of its claim by the Liquidator beyond the prescribed period of 14 days - The Appeal as filed by the Appellant Bank under Section 42 of IBC, 2016 is liable to be dismissed. Appeal dismissed.
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