TMI Blog2021 (5) TMI 318X X X X Extracts X X X X X X X X Extracts X X X X ..... nd to reject the claim submitted by the Applicant as a secured claim - While filing the instant application, the Applicant has miserably failed to explain the reason of delay in filing the instant application and also not prayed for any condonation of delay for the same. Time Limitation - HELD THAT:- That apart, it is also admitted fact that Applicant is always attending the CoC meeting being the member of the CoC constituted in the liquidation process of the Corporate Debtor and the liquidator in all its meeting reported all the developments in the liquidation process of the Corporate Debtor and also inviting suggestions from the members of the CoC on various aspects of the liquidation process of the Corporate Debtor, however the Applicant did not raise any objection. Thus, the Applicant cannot take to plea that he is not aware of the fact that he is classified as unsecured creditor. Instead of going into further detail of the matter, the fact remains that even after having the knowledge with regard to the classification as unsecured creditor, the Applicant has not taken any steps and filed instant application almost after 551 days, when Code provide that an appeal has to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng and assuring unto the Applicant as and by way of first charge, its lease hold right, title and interest in respect of the premises being plot bearing Block No. 903 at Village Mendhar, Taluka Gandevi, District Navsari admeasuring about 100 hectares or thereabouts together with all the buildings and other structures thereon (mortgaged property). c) Deed of Guarantee dated 30.03.2013 executed by Defendant No. 3 in favour of the Applicant (Deed of Guarantee). Copies of the above are annexed along with Application. 4. It is further submitted that in order to secure the interest of the Applicant vis-a-vis the aforesaid Shipbuilding Subsidy Scheme, as Escrow Account bearing No. 00600350093444 (Escrow Account) was opened with HDFC Bank Limited, Mumbai between the Applicant and Corporate Debtor. For smooth running and functioning of the Escrow Account, an Agreement was also entered between the Applicant and the Corporate Debtor in HDFC Bank Limited (Escrow Agreement) on 30.03.2013, which reveals that Corporate Debtor had unequivocally agreed and undertook to invite payments of all subsidies from Ministry of Shipping under the Shipbuilding Subsidy Scheme in the aforesaid Escr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditor and the same was reflected in the list of the stakeholder as on 30.11.2018 provided by the IRP to all the stakeholders including the Applicant during the 19th COC meeting held on 17.12.2018. 10. It is further submitted that since no viable plan was received during the period of CIRP, the Corporate Debtor went under the Liquidation vide order dated 25.04.2019 passed in IA 113/2019 and Mr. Sundaresh Bhat was appointed as Liquidator of the Corporate Debtor. In pursuance of the liquidation order so passed in respect of the Corporate Debtor public notice was issued on 03.05.2019 inviting the claims of the stakeholders of the Corporate Debtor in accordance with the provisions of Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016. The Applicant filed its claim before the Respondent/Liquidator as Financial Creditor in the requisite Form D dated 23.05.201(sic), which reflects all the details of grant of said Credit Facility, creation of security interest by Corporate Debtor and all the necessary documents were annexed. 11. It is further submitted that since the claim of the Applicant as well as security interest in favour of the Applicant were duly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d based on the said opinion, it was further informed that the shipping subsidy would thus form part of liquidation estate and the same would be distributed as per the provision of Section 53 of IB Code. The said e-mail dated 20.11.2020 along with the legal opinion provided on 23.10.2020 are annexed herein and marked as Annexure- N (Colly) . 14. On perusal of the said legal opinion, the reason for such categorization of the claim of the Applicant as 'Unsecured' was that the charge created in favour of the Applicant was not registered with the Registrar of Companies. It is further opined in the legal opinion that owing to such non-registration of charge, the said charge cannot be taken into account by the Opponent in view of Regulation 21 of the Liquidation Regulations read with Section 77(3) of the Companies Act, 2013. It is further submitted that the said opinion is completely erroneous and ex facie not tenable. 15. It is further submitted that the Opponent failed to appreciate that the competent court of law i.e. Hon'ble DRT, Ahmedabad has already adjudicated and upheld the security interest created in favour of the Applicant by the Corporate Debtor vide its judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Respondent as Liquidator. 21. Pursuant to such liquidation process, the Liquidator made public announcement on 3rd May, 2019 and received claims from various creditors, inter alia, the Applicant vide its Form-D dated 23rd May, 2020. In view of such claim of the Applicant, the Respondent (Liquidator) vide its e-mail dated 3rd June, 2019, requested the Applicant (amongst others) to furnish the document such as ROC charge registration certificate or CERSAI search reports in support of the security interest in the assets of the Corporate Debtor. However, the Applicant failed to furnish any such document (till date) in support of its security interest and therefore, in absence of such documents, the Liquidator pursuant to publication of the Final List of creditors on the website of the Corporate Debtor on 5th July, 2019 (hereinafter referred to as the Classification Decision ) and public announcement dated 15.07.2019 in national and vernacular dailies announcing publication of the Final List of financial and operation creditors in the liquidation process of the Corporate Debtor, informed the Applicant of being classified as an unsecured financial creditor in the liquidation proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 12 of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulation 2016 issued a public announcement on 3rd May, 2019 in various national and vernacular dailies and requested all the stakeholders to file their claims with proof on or before 29th May, 2019. Consequent upon which, the Respondent received the claim of the Applicant vide its Claim Form amounting to ₹ 259,97,90,186/-, whereby, ₹ 90,00,00,000/- was reflected as principal loan amount and ₹ 169,26,26,145/- and ₹ 71,64,040/- reflected towards interest and expenses, respectively. Along with the Claim Form, the Applicant submitted details of security documents pertaining to (i) 100 hectares of NA Land owned and mortgaged by Onaway Industries Limited pursuant to Indenture of Collateral Security dated March 30, 2013, (ii) interim security by the Corporate Debtor by way of first charge in favour of the Applicant of the shipbuilding subsidy to be received by the Company from the Ministry of Shipping, Government of India under the Scheme vide Deed of Hypothecation dated April 11, 2013, and (iii) corporate guarantee extended by ABG International Ltd. in terms of Deed of Guarantee dated Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent/Liquidator on June 29, 2019 had published a list of claims of financial creditors (herein after referred to as the Final List ) reflected the details pertaining to the adjudication and classification of the claim in the liquidation process and in which list, the Applicant was categorized as unsecured creditor. In the said list, the Applicant was clearly reflected as unsecured creditor with an admitted claim of ₹ 2,595,137,735/-. The entire claim of the Applicant was accepted as an unsecured debt in the liquidation process. However, the Applicant did not raise any concern with the Liquidator and have actively participated in the subsequent meeting of the CoC of the Corporate Debtor without any objections. 31. It is further submitted that the Liquidator has provided ample amount of opportunities to the Applicant to substantiate its claim with documents reflecting registration of charge, however, in absence of such supporting document being furnished by the Applicant, the Liquidator has classified the claim of the Applicant as unsecured financial claim in accordance with law. 32. Gone through the records and documents annexed with the application as well as the reply. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in or outside India, to register the particulars of the charge signed by the company and the charge-holder together with the instruments, if any, creating such charge in such form, on payment of such fees and in such manner as may be prescribed, with the Registrar within thirty days of its creation: Provided that the Registrar may, on an application by the company, allow such registration to be made (a) in case of charges created before the commencement of the Companies (Amendment) Ordinance, 2019, within a period of three hundred days of such creation; or (b) in case of charges created on or after the commencement of the Companies (Amendment) Ordinance, 2019, within a period of sixty days of such creation, on payment of such additional fees as may be prescribed: Provided further that if the registration is not made within the period specified (a) in clause (a) to the first proviso, the registration of the charge shall be made within six months from the date of commencement of the Companies (Amendment) Ordinance, 2019, on payment of such additional fees as may be prescribed and different fees may be prescribed for different classes of companies; (b) in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25 of the Act. If the charges are not registered the same would be void against the liquidator or creditors. The above-mentioned position with respect to registration of the charge viz-a-viz acceptance of security interest in the liquidation process of any company, has been followed by the Hon'ble National Company Law Appellate Tribunal in India Bulls Finance Ltd. Vs. Samir Kumar Bhattacharta and Ors. [CA(AT) (Insolvency) No. 830 of 2019] whereby it has been held that: 9. It is thus clear that the CoC had made it clear that in absence of Charge being registered, the Appellant could not be treated as Secured Financial Creditor. Although, the transaction is stated to be of 2012, it is clear that the Charge was not got registered either by the Corporate Debtor or the Appellant till now on 03.10.2019 which is after the Resolution Plan was approved on 04.07.2019. Section 77 of the Companies Act, 2013 required the Charge to be registered and the Appellant had an option to resort to even Section 78 of Companies Act, 2013, if there were any grievances. Not having done so, when CIRP started trying to rely on the equitable mortgage without a charge created, we do not find there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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