TMI Blog2020 (1) TMI 1079X X X X Extracts X X X X X X X X Extracts X X X X ..... entailed in this issue, and the character of hypothecation are of the same character. But, in the case of lien, it is deemed that the asset is lying with the lien holder, whereas in the case of hypothecation, it is construed that asset is lying with the borrower. In the case of hypothecation, the creditor has to seek possession and realisation, whereas in the case of lien, the creditor can straight away realise from the asset and can put restraint upon the asset not to deal with it unless debt is cleared. Whenever any lien is created, the person having right of lien has a right to enforce the same against the asset in preference to charge of hypothecation. As to relief under section 52 of the Code, when debt is secured, the creditor is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chinery over which dispute arose in between the corporate debtor and BHEL, wherein the Arbitrator, on 24.01.2018, passed an award declaring BHEL being an unpaid seller, it has lien on the equipment lying at site as well as goods and also charge over the fully or partially erected facilities at site, therefore BHEL has superior right over other creditors to whom this Corporate Debtor created charge of hypothecation. Based on this reasoning, BHEL Counsel says that it is entitled to seek relief under Section 52 of the Insolvency Bankruptcy Code, 2016. 3. On hearing the submissions of either side and by seeing the relief sought by the Liquidator, it is evident that this Corporate Debtor erected its equipment worth of ₹ 915,25,2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation created by the Corporate Debtor in favour of some Bankers is superior to the right of BHEL, no occasion arose to this Bench to consider as to whether the right of BHEL over the asset is superior to the right of hypothecation in favour of the Bankers or not. 9. The liquidator only argument is that the charge of hypothecation is pari passu in nature, therefore, liberty shall be granted to the Liquidator to sell the asset of the Corporate Debtor so as to distribute it among the Secured Creditors of the Corporate Debtor. 10. To say that charge is pari passu in nature, the Liquidator has to establish that the character of charge of lien created in favour of BHEL over the machinery entailed in this issue, and the character ..... X X X X Extracts X X X X X X X X Extracts X X X X
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