TMI Blog2021 (2) TMI 254X X X X Extracts X X X X X X X X Extracts X X X X ..... rs. Since, the Building/ hospital is situated in the very same land having 16.55 Ares, no purpose will be served without getting the hospital property also into the Liquidation Assets - Moreover, the 1st Respondent Union Bank of India has no objection in handing over the possession and the 2nd Respondent Meenanchil East Urban Co-operative Bank Limited even though objected to; they have conditionally agreed to hand over possession, provided their interest is well secured. There is no doubt that the Liquidator will consider all the claims and make payments to each person/authority, as per the Regulations/ Rules. Hence, the 2nd Respondent s apprehension cannot be sustained. Both Respondents are directed to hand over the physical possession of the mortgaged leasehold land of the Corporate Debtor (both Express Lease Implied Lease lands used by the Corporate Debtor) to the Applicant in order to use as the Liquidation Estate of the Corporate Debtor - the Applicant is also allowed to add the mortgaged land (Express Lease-100.16 Ares Implies Lease- 78.45 Ares) into the Liquidation Estate of the Corporate Debtor - Liquidator is directed to strictly follow the procedures to take over t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of 99 years vide Lease Agreement dated 30.07.2014 for construction of a hospital in order to run the hospital business. It is also noticed that the leasehold land has a clause to mortgage the land for obtaining loan. Accordingly, the leasehold land was mortgaged to the Respondent No. 1 and obtained loan for construction of a hospital. It is further stated that another land (Inside hospital premises) which is owned by Promoters/ Directors of the Company admeasuring 16.55 Ares was permitted by the Promoters/ Directors to the Corporate Debtor to construct the hospital utility services and its related services in the aforesaid area. The aforesaid land is under the usage of the Corporate Debtor for the purpose of its hospital utility services. The Corporate Debtor has not signed any express lease agreement (Implied Lease) for the said land area but the same is mortgaged by the Promoters/ Directors to Respondent No. 2. The Applicant further stated that, land admeasuring 61.90 Ares mortgaged to Respondent No. 1 is owned by the Promoters/ Directors of the Company. The said land is under the usage of the Corporate Debtor for the purpose of quarters for the hospital doctors, however t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when there occurred default on the part of the Corporate Debtor in repayment of the debt. The attempt to formulate Resolution Plan was made to recover the debt which at the time of institution of the IBA/240/2019 was ₹ 34,68,44,480/- (Rupees Thirty-Four Crores Sixty-Eight Lakhs Forty-Four Thousand Four Hundred and Eighty Only) as on 23.10.2018. The main hospital building has been constructed on land leased to the Corporate Debtor by its promoters. The said promoters are also guarantors to the loan transactions between the Financial Creditor and the Corporate Debtor. As per new amendments in the IBC Code, 2016, proceedings under IBC can also be initiated against the Guarantors of Corporate Debtors. In the instant case Guarantors to the Corporate Debtors are Promoters/ Directors of the Corporate Debtor. Promoters/ Directors have mortgaged their individual property to creditors for availing the loan facility from creditors. So, the creditors have all right to sell the mortgaged properties of Promoters/ Directors. In this case the secured creditors are having both mortgaged as well as leased right as security for payment of liability of the Corporate Debtor. 8. The Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Deed No: 1009/15 of Erattupetta SRO. 12. The 2nd Respondent further stated that the Applicant/Liquidator after due evaluation of their claims and contents, duly admitted their claim vide his letter dated 15.07.2020 and confirmed that the claims will be released as per the provision of Section 53 of Insolvency and Bankruptcy Code, 2016. 13. It is also stated that the 2nd Respondent is a Secured Creditor holding due Security interest upon the properties of the Corporate Debtor as well as the Personal Guarantors as defined under Sections 3(30) and 3(31) of the Insolvency and Bankruptcy Code, 2016 read with Regulations 21 and 21A of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016. It is also stated that the property is free of any such encumbrances and mortgaged as personal properties of the Personal guarantors with the 2nd Respondent for securing financial facilities, and that the same will not constitute a Liquidation Estate within the parameters of Section 36 of the Code. However, they conditionally expressed their willingness to release the property under the strict orders of this Tribunal; provided that the Liquidator should file an affi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eleased under priority set out in Section 53(b) of the Insolvency and Bankruptcy Code. I respectfully submit the release of the property as sought for will effectively cause release of the substantial security interest of this Respondent. Hence this Hon ble Tribunal may issue strict directions to the Liquidator to deal with the assets in the best interest of this Respondent protecting and ensuring the entire admitted claim of this Respondent . 18. I have perused the definition of Personal Guarantor as defined under Sections 3(30) and 3(31) of the IBC, 2016 as mentioned below: - 3(30) secured creditor means a creditor in favour of whom security interest is created; 3(31) 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 of any person: Provided that security interest shall not include a performance guarantee; 19. I have also gone through the decision r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein who are Financial Creditors who hold the property in question due to the fact that the property is pledged with them by the Corporate Debtor can be directed to be physically handed over to the Resolution Professional? In my opinion since the Resolution Professional has to conclude the proceedings, it is highly necessary to get the possession of the property, as it is the duty of the Resolution Professional to dispose of the Liquidation Assets of the Corporate Debtor if necessary, to settle the claims of all claimants including the Financial Creditors. Since, the Building/ hospital is situated in the very same land having 16.55 Ares, no purpose will be served without getting the hospital property also into the Liquidation Assets. 25. Moreover, the 1st Respondent Union Bank of India has no objection in handing over the possession and the 2nd Respondent Meenanchil East Urban Co-operative Bank Limited even though objected to; they have conditionally agreed to hand over possession, provided their interest is well secured. There is no doubt that the Liquidator will consider all the claims and make payments to each person/authority, as per the Regulations/ Rules. Hence, the 2nd Re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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