TMI Blog2019 (10) TMI 1363X X X X Extracts X X X X X X X X Extracts X X X X ..... to something that is not present in the Code. When Section 53 of the Code is very clear that secured creditors are placed ahead of other creditors, now this Bench cannot upgrade anybody to any position other than the position already law mandates. In this case, it is no doubt the applicants invested money for returns through MoU dated 29.01.2015 and also simultaneously entered into Registered Sale Agreements dated 29.01.2015, the Corporate Debtor agreeing to sell undivided share of vacant land in Schedule-B of that Agreement, but it does not reflect creation of charge or passing of interest in favour of these applicants, indeed one of the sale agreements reflects that charge is in force in favour of Tata Capital Housing Finance Limited - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant herein as a Secured Financial Creditor of the Respondent No.1; c. To put the Application under Section 31 of the Insolvency and Bankruptcy Code, 2016 filed by the Respondent No.2 herein seeking approval of the impugned Resolution Plan in abeyance till the disposal of the instant Application keeping in mind the interest of the Home buyers and the Applicant herein; and d. It is prayed that the Hon'ble Bench may invoke its jurisdiction under section 31(2) and reject the impugned Resolution Plan in the interest of the Stake holders. e. Pass such other order as this court may deem fit. 2. This is MA/553/2019 filed by another Applicant in viz., Sanchit Sales Pvt. Ltd. filed against P dot G Construction Private Limited a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditors. 6. In order to bolster his arguments, these Applicants have relied upon definitions of secured creditor and definition of security interest which are as follows:- Secured Creditor means a creditor in favour of whom security interest is created; Security Interest means, right, title or interest or a claim to property, created in favour of, or provided for a secured creditor by a transaction which secures payment or performance of an obligation and includes mortgage, charge, hypothecation, assignment and encumbrance or any other agreement or arrangement securing payment or performance of any obligation or any person. Provided that, security interest shall not include a performance guarantee. 7. As against these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t authority will not make any difference to the character of the document. The rights will flow from the document executed in between the parties. Here the right conferred upon these creditors is only a right to proceed against the corporate debtor, in the event the corporate debtor fails to adhere to the terms and conditions of the agreement sale, therefore, these Applicants insisting upon to declare a right that has not been conferred upon them under the agreement not supported by any transfer of interest as stated under the TP Act, sale agreement cannot be taken in as creation of charge over the property. 10. Creditor will become secured creditor only when security interest is created over an asset, and security interest means right o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... editors being the objective of the Code, financial creditors are clearly different from operational creditors and therefore, there is obviously an intelligible differentia between the two which has a direct relation to the objects sought to be achieved by the Code. 12. It has been holding that if classification is permissible by change of the character of the obligation between the parties, such classification can neither be erased nor invented by the court. Therefore, this Bench on its own, cannot read into something that is not present in the Code. When Section 53 of the Code is very clear that secured creditors are placed ahead of other creditors, now this Bench cannot upgrade anybody to any position other than the position already ..... X X X X Extracts X X X X X X X X Extracts X X X X
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