TMI Blog2022 (11) TMI 700X X X X Extracts X X X X X X X X Extracts X X X X ..... After stating the facts, especially the fact that Appellant has exposure of 99.19% to the debt of the Corporate Debtor and further it initiated proceedings under SARFAESI Act, 2002 and has taken possession of the assets of the Corporate Debtor, in the application it is stated that it is entitled to have knowledge of the affairs of the Corporate Debtor including proceedings initiated by or against the Corporate Debtor. In the circumstances, it has prayed for intervention and in alternative has prayed for Applicant s counsel be permitted to advance its submissions at the time of final hearing. The fact that the Corporate Debtor had filed an application seeking direction to the Operational Creditor to bring materials on record regarding insurance claim and its disbursement itself indicate that in the Section 9 application filed by the Operational Creditor no details regarding claim lodged before the Insurance Company and disbursement have been brought on record - From the facts of the present case, especially the document brought on record by the Appellant i.e. Claim Discharge and Subrogation Form dated 04.12.2017, the Appellants be permitted to intervene in the proceedings init ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permit the Applicant herein to intervene in the present Company Petition and further direct the Operational Creditor to supply to copies of the pleadings to the Applicant herein; In alternative to (b) b) That this Hon ble Tribunal be pleased to permit the Applicant to make appropriate submissions through its Advocate at the time of final hearing of present Company Petition. c) That this Hon ble Tribunal be pleased to pass such other and further directions and reliefs as this Hon ble Tribunal may deem fit and proper to meet the ends of justice. 3. I.A. No. 486 of 2022 filed by the Appellant was opposed by the Operational Creditor and the Operational Creditor filed an affidavit in reply dated 07.06.2022. The Appellant s case in the application was that the Appellant has 99.19% exposure in the debt of the Corporate Debtor and any order of admission will have impact on the Applicant/Appellant. The Applicant/Appellant claimed that it entitled to have knowledge of the affairs of the Corporate Debtor, including the proceedings initiated by and/or against the Corporate Debtor. Appellant/Applicant submitted that claim of the Operational Creditor in the proceeding is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is also desirous of ascertaining true and correct facts in relation to transaction under present petition. It is further stated that Applicant has exposure to the excess of Rs.3600 Crores whereas Operational Creditor has claim of Rs.100 Crores only. Applicant has already proceeded under SARFAESI Act and all the assets of the Corporate Debtor are in possession of the Applicant, hence, the Adjudicating Authority ought to have permitted the Applicant to intervene in the matter. It is submitted that the Appellant subsequently came to know that the Operational Creditor has already received the claim of goods from the Insurance Company and also has already given discharge to the Insurance Company and it is the Insurance Company who is entitled to initiate proceeding in their own name and discharge was given on 04.12.2017, hence, in view of this fact Appellant ought to have been permitted to intervene to know the relevant facts and further to bring facts in the notice of the Adjudicating Authority for proper adjudication of the Section 9 application. It is submitted that in view of the discharge given by the Operational Creditor after receiving the claim amount regarding goods in questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cture Finance Company Ltd. vs. Gwalior Bypass project Ltd. Anr., 2019 SCC OnLine NCLAT 1033 . It is submitted that judgment of this Tribunal in the aforesaid case of L T Infrastructure Finance Company Ltd. has also been confirmed by the Hon ble Supreme Court by dismissing the Appeal on 03.02.2020. 8. We have considered submissions of learned counsel for the parties and perused the record. From the facts which have been brought on the record, it is clear that Appellant before us are Financial Creditor who had exposure to extent of 99.19% debt owed by the Corporate Debtor. Learned counsel for the Respondent is right in his submission that in Section 9 proceedings Financial Creditor has right to intervene only after Section 9 application is admitted, then they can file claim and be part of the CoC. The judgment of this Appellate Tribunal cited by learned counsel for the Respondent in L T Infrastructure Finance Company Ltd. do support the above submission of learned counsel for the Respondent. This Tribunal in the aforesaid judgment was considering the case where application of a Financial Creditor who has sought intervention and impleadment in the Section 7 application filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Financial Creditor , it can file claim before the Resolution Professional , but it cannot challenge the order of admission in absence of any challenge by the Corporate Debtor , on the ground that it has first charge on the asset of the Corporate Debtor or has superior claim over the claim of the other Financial Creditors . 10. There are two distinguishing features of the present case from the case of L T Infrastructure Finance Company Ltd. . Firstly, in the above case Intervention Application was filed by the L T after order was reserved on the application filed under Section 7 and secondly, L T has challenged both order rejecting his Intervention Application and order admitting the Section 7 application of the same date. In the present case, application under Section 9 is yet to be heard and admitted. We also notice that the above judgment of this Tribunal has been affirmed by the Hon ble Supreme Court in Civil Appeal No. 590-591/2020 by judgment dated 03.02.2020. 11. Another judgment which has been relied by learned counsel for the Respondent is judgment of the Hon ble Supreme Court in Beacon Trusteeship Ltd. vs. Earthcon Infracon Pvt. Ltd. Anr., 2020 SCC O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 65 of the IBC, it is necessary for the Adjudicating Authority in case such an allegation is raised to go into the same. In case, such an objection is raised or application is filed before the Adjudicating Authority, obviously, it has to be dealt with in accordance with law. The plea of collusion could not have been raised for the first time in the appeal before the NCLAT or before this Court in this appeal. Thus, we relegate the appellant to the remedy before the Adjudicating Authority. 8. In case, a proper application is filed, aspect whether the proceedings have been initiated in collusive manner will be looked into, in accordance with law and the appropriate orders have to be passed, considering the facts and circumstances of the case. We have made it clear that we have not commented on the merit of the case. We set aside the impugned order passed by the NCLAT and dispose of the appeal in accordance with the aforesaid direction. 9. The interim protection granted by this Court vide order dated 30.09.2019 shall continue to operate for a period of four weeks from today. In the meantime, it is open to the appellant to file appropriate application for interim protec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Applicant and the legal process initiated by the Applicant herein. The Applicant further submits that as an assignee of the bankers/original lenders, the Applicant is entitled to have knowledge of the affairs of the Corporate Debtor, including proceedings initiated by and/or against the Corporate Debtor and business transactions entered into by the Corporate Debtor. 14. Further, the Applicant has a large amount outstanding from the Corporate Debtor which is in excess of Rs.3600 Crores (Rupees Three Thousand Six Hundred Crores only), which the Applicant is entitled to recover. In these circumstances, the Applicant is required to be heard before passing of any orders as such orders may affect the Applicant s ongoing effort of recovery of its outstanding dues. The Applicant further submits that the Applicant is entitled to peruse the case papers and ascertain true and correct nature of transaction. 15. The Applicant submits that in view of the above facts and circumstances, the present Application is filed so as to seek direction upon the Respondent No.1 herein to provide copies of papers and proceedings as well as allow the Applicant herein to make its submission at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above mentioned policy out of the said occurrence, up to the amount of the Interim Liability (as may be adjusted in accordance with the paragraph above), and We agree that We are indemnified for all claims up to such amount. For the avoidance of doubt this discharge and liquidation of claims shall not apply to the extent the Interim Liability is re-assessed by TAWUNIYA. Further, We hereby assign, set over transfer, subrogate and substitute to TAWUNIYA any and all rights, claims, actions, interests, suits and proceedings in respect of this loss/damage which We have or ought to have against (the third party) and/or their Insurers or any other third party who are liable or hereafter adjudged to be liable for this loss/damage, whether under general law or under contract, to the extent of amount mentioned above plus all expenses incurred in relation to this loss/damage (to the extent included in the aforesaid amount paid to us). We hereby reserve our rights to claim any uninsured losses/deductibles if any such sums are recovered by TAWUNIYA. We hereby agree to grant a Power of Attorney to TAWUNIYA favouring any person/firm authorized by TAWUNIYA to proceed against the parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erational Creditor need to be admitted or not admitted and said issue be examined and decided by the Adjudicating Authority itself. 18. The fact that the Corporate Debtor had filed an application seeking direction to the Operational Creditor to bring materials on record regarding insurance claim and its disbursement itself indicate that in the Section 9 application filed by the Operational Creditor no details regarding claim lodged before the Insurance Company and disbursement have been brought on record. The Adjudicating Authority on 27.07.2022 passed following order in I.A. No. 643 of 2022: IA 643 of 2022 Application is filed by the corporate debtor raising the issue that there is an apprehension about applicant not disclosing about the insurance taken with respect to the goods supplied/ any claim lodged for the amount before the Insurance company/ any disbursement by the Insurance Company of any amount, which is the subject matter in the main application, CP (IB) 204 of 2020 filed by the operational creditor. This issue can be agitated at time of hearing of the main IB application by the corporate debtor for proper adjudication. The operational creditor to br ..... X X X X Extracts X X X X X X X X Extracts X X X X
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