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TMI Blog2019 (8) TMI 1746X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 11 of NCLT Rules, 2016 seeking similar reliefs as in IA No. 654 of 2019 stated supra. Further the Applicant prayed for an order, in the nature of clarification / direction permitting the Resolution Applicant to modify / revise / alter its Resolution plan and directions to Resolution Professional to retain an amount of Rs. 6.03 crores in an interest bearing account 3. Brief facts in the Applications are 1) This Tribunal vide orders passed in CP (IB) No. 37/9/HDB/2018 dated 23.03.2018 admitted the Petition filed under Section 9 of the Code by M/s. Harindera Cargo Carriers Pvt Limited/ Operational Creditor and Corporate Insolvency Resolution Process ("CIRP") started against the Corporate Debtor from 10.07.2018 and Respondent No. 1 was appointed as Interim Resolution Professional and subsequently confirmed as Resolution Professional (RP). 2) The Resolution Plan submitted by the Applicant/ Resolution Applicant was approved by the Committee of Creditors (CoC) with 100% voting share which was subsequently approved by this Adjudicating Authority in accordance with Section 30(4) of the Code vide orders passed in IA No. 264/2019 dated 04.06.2019. 3) Pursuant to approval of the Reso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Limited ("APL") has created a charge on the land situated at Baroda, Gujarat (where plant of the Corporate Debtor is situated) in favour of APL Lenders to secure an amount of INR 1212.17 Crores. ("MOE-. BARODA") (b) Memorandum of Entry dated 15.10.2015 whereby the Corporate Debtor has created a charge on the land situated at Bhootpur, Telangana (where plant of the Corporate Debtor is situated) in favour of the Lenders of APL to secure an amount of INR 1212.17 Crores. ("MOEBhootpur"). 4. It is the case of Resolution Applicant that the total commitment of the Resolution Applicant under the Resolution Plan is INR 57 Crores and the undisclosed charge is of approx. INR 1212 Crores which is approximately equal to 21 times the total commitment of the Resolution Applicant. It is stated that this huge liability makes the Resolution Plan submitted by the Applicant unviable and infeasible. It is averred despite these circumstances, the Resolution Applicant is willing to work towards the insolvency. resolution of the Corporate Debtor, subject to certain modifications of the Resolution Plan to make it suitable, feasible and viable under the current circumstances and particularly in view of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to retain Rs. 6.03 crores being 10% of the total consideration in the interest bearing account by the RP and interest accrued thereon to be provided to the Resolution Applicant and to direct Resolution Professional not to utilise the same by RP or CoC, till approval of the revised Resolution Plan. 8. The Learned Counsel for CoC filed memo dated 08.07.2019. It is averred in the memo that Resolution Applicant raised certain apprehensions regarding statutory dues and sought clarifications on the same vide above two IAs. 9. It is also stated that the 2nd charge/subordinate Mortgage held by the Consortium Lenders of M/s. Aster Private Limited, which is the parent Company of the Corporate Debtor would be revived and that in the event of successful enforcement of such 2nd charge would deprive the properties which stands transferred by the CoC on approval of the Resolution Plan of the Corporate Debtor. 10. It is the case of CoC that Corporate Debtor during the arguments made it clear that if Adjudicating Authority passed an order in the nature of clarification that the second charge or the subordinate mortgage with respect to the properties transferred under the Resolution Plan would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Resolution Applicant came to know that Holding Company of Corporate Debtor created a charge on the land situated in Vododara, Gujarat on which plant of Corporate Debtor is situated in favour of Aster Private Limited Lenders to secure a loan of Rs. 1212.17 Crores. Similarly, the Corporate Debtor also created charge over the lease hold rights in favour of the M/s. Aster Private Limited lenders in respect of Bhootpur Land. Thus, undischarged debt is Rs. 1212 Crores. So there is maximum liability on the lease hold land which is only primary land basing on which Resolution Plan was submitted. 16. So, Learned Counsel contended in order to protect interest of Resolution Applicant, he may be permitted to modify the Resolution plan by including a clause that CoC to assign a debt of Rs. 60 crores out of total debt owned by the Corporate Debtor to CoC in favour of Resolution Applicant along with security interest held by CoC or in case this proposal is not feasible, then Resolution Applicant be permitted to withdraw from the Resolution Plan. 17. In the second Application bearing IA 655 of 2019, the alternative reliefs sought by the Resolution Applicant is that payments already made by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... secured creditors, intellectual property rights, products, all current assets, including stocks & receivables and other actionable claims of the Corporate Debtor, excluding the amount recovered if any in case the RP proceeds and succeeds in the reversal and return of the preferential transactions before the Adjudicating Authority. 21. The Resolution Applicant is allowed to take over all the immovable assets including lease rights mortgaged to secured creditors etc. So, the lease hold rights held by the Corporate Debtor will be automatically taken over by the Resolution Applicant. Clause 6 (C) (1) provides as follows:- 6(C)(i) Satisfaction or modification of any security interest: Resolution Applicant shall be allowed to get transfer in their favour, all the asset of the Corporate Debtor (both Movable and immovable) as mentioned in the Information Memorandum/office document provided to us, free from all types of encumbrances /liabilities which are charged to Lenders / Financial Creditor who also the members of the Committee of Creditors, in the current, with CIRP of the Corporate Debtor. The properties actually to be taken over by the Resolution Applicant shall be free from all t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 77 of the Companies Act, 2013 deals with registration of charges. However, Company has to create a charge on its property or assets to register the particulars of the charge with Registrar within 30 days of its creation. So, it is mandatory that the Company to register charge with RoC concerned. The details will disclose whether CoC is having first charge over the lease hold rights 25. Section 101 of Transfer of Property Act is as follows: - No merger in case of subsequent encumbrance.-Any mortgagee of; or person having a charge upon, immoveable property, or any transferee from such mortgagee or charge holder, may purchase or otherwise acquire the rights In the property of the mortgagor or owner, as the case may be, without thereby causing the mortgage or charge to be merged as between himself and any subsequent mortgagee of; or person having a subsequent charge upon, the same property; and no such subsequent mortgagee or charge holder shall be entitled to foreclose or sell such property without redeeming the prior mortgage or charge, or otherwise than subject thereto. It is very clear as per Section 101 of Transfer of Property Act, no subsequent mortgagee o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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