TMI Blog2020 (11) TMI 671X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Corporate Insolvency Resolution Process (CIRP). 3. It is submitted that for want of a Resolution Plan during the CIRP period, acceptable to the Committee of Creditors consisting of 14 Banks who had extended Financial Assistance earlier, the Company was ordered to be liquidated. Mr. V. Mahesh was appointed as a Liquidator of M/s. Nagarjuna Oil Corporation Limited (CUL) pursuant to the order dated 11.12.2018 passed by this Tribunal in MA/289/2018. 4. It is submitted that subsequent to the liquidation order issued by this Tribunal, the Applicant has filed Form - D (proof of claim by the Financial Creditors) under Regulation 18 of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 on 10.01.2019 with the said Liquidator claiming a sum of ₹ 124,02,44,265/- as on 11.05.2018 being the debt amount due from the 2nd Respondent. 5. It is further submitted that the Liquidator of the M/s. Nagarjuna Oil Corporation Limited i.e., CUL had rejected the aforesaid claim amount on 11.05.2020 by observing that no such claim from lenders to BOOT OPERATORS or EPCM CONTRACTORS or any other third party and their respective clients, if any, is tenable un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he sub-lease agreement, M/s. Coastal Oil Gas Infrastructure Private Limited shall be entitled to create mortgage, charge over the land in favour of their lenders on a first charge basis subject to M/s. Nagarjuna Oil Corporation Limited, obtaining the necessary approval. 11. The Applicant Bank has stated in the affidavit that in consideration of the grant of the term loan amount of ₹ 98.85 Crores as mentioned in the table, the 2nd Respondent viz., M/s. Coastal Oil Gas Infrastructure Private Limited had deposited the title deeds relating to the leasehold rights and interest in respect of immovable properties together with all buildings and structures thereon in favour of the term loan lenders including the applicant therein. It is also stated that besides executing 'Mortgage Deed' registered as Document No. 4148/2012, Sub Registrar Office, Joint-II, Cuddalore over the said property, the 2nd Respondent had also duly registered a charge before ROC, Andhra Pradesh. 12. The Banks in 1 to 4 stated in the table supra are known as boot lenders whereas M/s. Coastal Oil Gas Infrastructure Private Limited is known as Boot Operators in the 322.06 acre of lands obtained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two separate claims by a Financial Creditor in relation to the same Corporate Debtor are not maintainable. 19. The Learned Counsel for the Liquidator submitted that NOCL was not a party to the contracts through which the alleged credit facility had been extended to COGIL by the Appellant and there is no privity of contract between the Appellant and NOCL in respect of the claims for which this Appeal is made. Further, it was submitted that the Appellant is a constituent of the Committee of Creditors (CoC) of NOCL and has participated in various CoC meetings and is fully aware of the amount admitted and amount rejected in relation to NOCL and hence the Appellant cannot feign ignorance. 20. The Learned Counsel for the Liquidator submitted that in relation to the claim of the Appellant for a sum of ₹ 624.56 Crores in respect of Credit facility extended to NOCL has been duly accepted and the Appellant is a part of the CoC of NOCL. Further, it was submitted that in the 2nd CoC meeting held on 15.10.2019, it has been recorded as follows; BOOT OPERATORS SUB - LEASE The Liquidator briefed about the challenges to deal with the Boot operators issues. It is the Liquidat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 Application owing to liquidation and the said fact was intentionally suppressed by the Appellant Bank and they are indulging in forum shopping and are abusing the process of law. 24. The Learned Counsel for the Liquidator submitted that the claim of the Appellant or other lenders of COGIL against NOCL cannot be treated as a Financial Debt and the Appellant cannot be treated as a Financial Creditor under the provisions of IBC, 2016, as it does not satisfy the requirement of Section 5(8) of IBC, 2016. Further, in the absence of any direct contractual obligations between the Appellant and NOCL in this regard or any charge being registered by NOCL or the Appellant herein with the Registrar of Companies, Chennai, the claim of the Appellant cannot even be treated as a Debt by the Liquidator. 25. The Learned Counsel for the Liquidator submitted that Section 125 of the Companies Act, 1956 provides that charge which is not registered with the Registrar of Companies is void against the liquidator and other creditors of the Company. Further, it was submitted that the claim of the Appellant is nothing but an abuse of process of law and a desperate attempt to create obstacles and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examine the aspect of limitation in relation to the claim as filed by the Appellant Bank before the Liquidator. In this regard it is relevant to refer to the decision of the Hon'ble NCLAT in the matter of C.R. Badrinath -Vs- Eight Capital India (M) Limited Anr. in Company Appeal (AT) (Insolvency) No. 132 of 2020, wherein the Hon'ble NCLAT has held that the issue of Limitation can be raised at any stage and Section 3 of the Limitation Act provides that every application filed after the prescribed period of limitation shall be dismissed even when limitation has not been set up as a defence. The said proposition is equally applicable even in relation to an Appeal as in the instant case in view of the applicability of the provisions of the Limitation Act, 1963 (Act 36 of 1963) by virtue of Section 238A of IBC, 2016. 30. From the documents placed on record, 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 detai ..... 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