TMI Blog2017 (11) TMI 1115X X X X Extracts X X X X X X X X Extracts X X X X ..... y this Tribunal on 27.04.2017 and the Interim Resolution Professional was appointed vide order dated 08.05.2017. 2. The instant application has been filed under Section 75 read with Section 236 of the code to re-call the above orders of admission and appointment of Interim Resolution Professional (IRP) on the ground that the charge held by the Punjab National Bank/Financial Creditor has been assigned to the Asset Reconstruction Company (India) Limited (for brevity ARCIL). The charge was modified on 31.07.2017 w.e.f. 20.01.2015 and copy of the certificate issued by the Registrar of Company regarding modification of the charge is at page No.369. 3. It is thus, contended that Punjab National Bank had fraudulently filed application before this Tribunal on 31.03.2017 and obtained the orders of admission and appointment of the IRP by concealing the most material fact that the charge over the property has been assigned by Punjab National Bank in favour of ARCIL. Copy of Form CHG-1 filed with the Registrar of Companies on 20.01.2015 is at page No.326, which is admittedly signed by the official of the Bank and that of ARCIL. It is alleged that this fact was deliberately concealed by P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 20.01.2015 and filed application Form CHG-1. The representative of ARCIL also wanted the consent from the PNB being the lead Bank and there being paripasu charge in favour of PNB along with SBI. So both the Banks were required to file CHG-1 Form as represented by ARCIL. Accordingly, Form CHG-1 was filed by the PNB on the asking of SBI and ARCIL. 7. It is further stated that in Form CHG-1 filed under the signatures of the officials of PNB and ARCIL, the Assignment Agreement attached was between SBI and ARCIL and there was no assignment from PNB as is evident from the master data retrieved from the Portal of Ministry of Corporate Affairs on 06.04.2017 Annexure A-2. However, on receipt of the copy of the instant application, the master data of the company was again downloaded on 18.08.2017 and the Bank came to know of the modification of charge Id. No.102111348 of PNB recorded in favour of ARCIL. As soon as the Bank came to know of this change in the master data, a letter was written to the Registrar of Companies to reinstate the charge of PNB. Copy of the said letter is Annexure A-3. The Applicant is stated to have made false allegations of fraud and mis-representation. The For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustries Ltd. v. ICICI Bank Ltd. [and Ors. in Civil Appeal Nos. 8337/8338 of 2017 decided on 31.08.2018 held that once the Insolvency Resolution Professional is appointed to manage the company, the erstwhile Directors, who are no longer in the management obviously cannot maintain appeal on behalf of the company. Even in the appeal before the Hon'ble Supreme Court, the company was the sole appellant. The Hon'ble Supreme Court held that this being the case, the appeal obviously cannot be maintained. It may further be observed at this stage that if there is any indication of fraud as tried to be highlighted in the instant application, the right person to approach the Adjudicating Authority is the Insolvency Resolution Professional and not the company. 13. However, dealing with merits of the application, the learned counsel for Applicant referred to Section 75 of the Code, which reads as under:- Punishment for false information furnished in application: 75. Where any person furnishes information in the application made under section 7, which is false in material particulars, knowing it to be false or omits any material fact, knowing it to be material, such person shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orm which is between SBI as assignor and ARCIL as assignee. Copy of the same agreement has been attached at pages 333 and 370 of the paper book by the Applicant itself. Admittedly there were two CHG-1 Forms filed on 20.01.2015 on the basis of assignment of the Agreement one by SBI and the other by PNB. Copy of the Form filed by SBI has not been placed on record by the Applicant for obvious reasons. Even the certificate of modification of charge ID of SBI on the basis of assignment has not been filed. That certificate seems to have been issued soon after CHG-1 form was filed. This form signed by PNB was still pending for more than 2 years. 17. The law on the subject is quite clear that the charge is created on the basis of the documents like registered mortgage deed by deposit of title deeds or by assignment as in this case by SBI in favour of ARCIL. Simply change in the record of ROC cannot otherwise have any effect on the rights of the mortgagor without any document of creation of charge to lay claim over the security mortgaged with it. The record of ROC is meant to update the status and not for creating any right. 18. When the matter was listed on 27.9.2017, a categorical ..... X X X X Extracts X X X X X X X X Extracts X X X X
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