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2024 (3) TMI 459 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , CHENNAI BENCHCIRP - Unsecured Financial Creditor or not - Non-registration of charge before the Registrar of Companies - the mortgaged property, will form part of the Liquidation Estate or not - mortgage rights over secured assets - failure to fulfil the requirements as per Section 52 of the Code r/w Regulation 21 of the Liquidation Process Regulations - HELD THAT:- This Tribunal keeping in mind of the prime fact that Right to recover the money, lent by enforcing a mortgage is a Right to enforce, an interest in the property and that the claim of the First Charge Holder, shall prevail over the claim of the Second Charge Holder, and the Appellant / Petitioner, can very well enforce the Security Interest, resting on Section 58(f) of the Transfer of Property Act, 1882 and Rule 8 of the Security Interest (Enforcement) Rules, 2002, comes to a resultant conclusion that mortgage, is the result of the Act of Parties, where the Transfer of Ownership Interest, in a particular Immoveable Asset is created, and that the conclusion arrived at by the Adjudicating Authority / Tribunal, in upholding the decision of the Liquidator, in classifying the Appellant / Petitioner / Bank, as an Unsecured Financial Creditor, is an illegal and an invalid one, in the eye of Law and in the Liquidation Proceedings, the Appellant /Bank, is to be treated as Secured Creditor, as held by this Tribunal. In addition, the non-registration of the Mortgage, as per Section 77 of the Companies Act, 2013, is not a sufficient / enough ground, to come to an opinion, that the Appellant, is not a Secured Creditor. In reality, the rights of a Mortgagee, under the Transfer of Property Act, 1882 and the SARFAESI Act, are not to be diluted, in terms of Regulation 21 of IBBI (Liquidation process) Regulations, 2016. It cannot be lost sight of the fact that CERSAI Registration, became mandatory, only in February, 2020, much after the Mortgage, was created in the instant case. Further, the fact remains that the Mortgage, was registered in the Office of S.R.O., Thovalai, Kanyakumari District, Tamil Nadu, which is again a Public Office, providing information, on the Mortgages, registered in it. Suffice it for this Tribunal, to unhesitatingly, to hold, that the Appellant’s rights, in holding a Valid Mortgage Right, over the Secured Assets, is to be protected, by any means whatsoever The impugned order upholding the decision of the Liquidator, in classifying the Appellant/Petitioner, as an Unsecured Financial Creditor, is an invalid and illegal one and the same is set aside, by this Tribunal, to secure the ends of Justice - appeal allowed.
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