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2023 (5) TMI 303 - SC - Insolvency and BankruptcyClaim of secured creditor - right on the basis of the pledged shares - financial debt under the IBC defined as Security Interest under Section 3(31) of the IBC - the NCLT observed that the appellants not having advanced any money to the Corporate Debtor as a financial debt would not be coming within the purview of financial creditor of the Corporate Debtor. Making above observations, the NCLAT has dismissed the appeal. HELD THAT - The difficulty which arises in the present case is that, in terms of the decision of this Court in Anuj Jain 2020 (2) TMI 1259 - SUPREME COURT and Phoenix ARC 2021 (2) TMI 121 - SUPREME COURT , Appellant No. 1 Vistra is to be treated as a secured creditor, but would not fall under the category of financial creditors or operational creditors. Therefore, they would be denied the benefit of the amendments to Section 30(2) of the Code made vide Act No. 26 of 2019, or for that matter Act No. 26 of 2018. Consequently, a very odd and a peculiar situation is created where a secured creditor is denied the benefit of the secured interest i.e., the right to exercise the sale of the secured interest, yet not be treated as either a financial creditor or an operational creditor. In terms of Section 52 of the Code, a secured creditor in liquidation proceedings has the right to relinquish its security interest to the liquidation estate and receive proceeds from the sale of assets by the liquidator in the manner specified under Section 53 of the Code. The second option given to the secured creditor is to realise the security interest in the manner specified in aforesaid Section. Rule 21A of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016. Liquidation Process Regulations deals with the presumption of security interest, which we need not elaborate for the present decision. If the secured creditor relinquishes the security interest, it is then entitled to priority in payment under clause (b) to subsection (1) to Section 53 of the Code. The debts owed to the secured creditor in such event, rank pari passu with the workmen s dues for the period 24 months preceding the liquidation commencement date. As per Section 52(9) of the Code, where the proceeds on realisation of secured assets are not adequate to repay the debts due to the secured creditors who have exercised the option to realise the security interest, the unpaid dues of such secured creditors are to be paid by the liquidator in terms of clause (e) of subsection (1) of Section 53 of the Code. Appellant No.1 Vistra, a secured creditor, is being denied the rights under Section 52 as well as Section 53 of the Code in respect of the pledged shares, whereas, the intent of the amended Section 30(2) read with Section 31 of the Code is too contrary, as it recognises and protects the interests of other creditors who are outside the purview of the CoC - the answer to this tricky problem is twofold. First is to treat the secured creditor as a financial creditor of the Corporate Debtor to the extent of the estimated value of the pledged share on the date of commencement of the CIRP. This would make it a member of the CoC and give it voting rights, equivalent to the estimated value of the pledged shares. However, this may require reconsideration of the dictum and ratio of Anuj Jain and Phoenix ARC, which would entail reference to a larger bench. In the context of the present case, the said solution may not be viable as the resolution plan has already been approved by the CoC without Appellant No. 1 - Vistra being a member of the CoC. Therefore, we would opt for the second option. The second option is to treat the Appellant No. 1 Vistra as a secured creditor in terms of Section 52 read with Section 53 of the Code. In other words, we give the option to the successful resolution applicant DVI (Deccan Value Investors) to treat the Appellant No.1 Vistra as a secured creditor, who will be entitled to retain the security interest in the pledged shares, and in terms thereof, would be entitled to retain the security proceeds on the sale of the said pledged shares under Section 52 of the Code read with Rule 21A of the Liquidation Process Regulations. The second recourse available, would be almost equivalent in monetary terms for the Appellant No. 1 Vistra, who is treated it as a secured creditor and is held entitled to all rights and obligations as applicable to a secured creditor under Section 52 and 53 of the Code. This to our mind would be a fair and just solution to the legal conundrum and issue highlighted. The submission is that the Appellant No. 1 Vistra had not objected to the resolution plan submitted by the erstwhile resolution applicant LHG and, as a sequitur, its non-classification as a financial creditor in the CoC of the Corporate Debtor Amtek. Though this argument had appealed and had weighed with the NCLAT, in our opinion is untenable since the resolution plan submitted by erstwhile resolution applicant LHG did not in any way affect the rights or interests of the Appellant No. 1 Vistra as a secured creditor in respect of the pledged shares. Appellant No. 1 Vistra has elaborately explained that LHG etc. were in negotiations with them so as to redeem the pledge and acquire the shares. The impugned judgment of the NCLAT affirming the view taken by the NCLT is partly modified in terms of our directions holding that appellant no.1 M/s. Vistra ITCL (India) Limited would be treated as a secured creditor, who would be entitled to all rights and obligations as applicable to a secured creditor in terms of Sections 52 and 53 of the Code, and in accordance with the pledge agreement dated 05.07.2016. Appeal disposed off.
Issues Involved:
1. Whether the appellants' claim as a secured financial creditor was belated. 2. Whether the appellants qualify as financial creditors of the Corporate Debtor. 3. The applicability of the decisions in Anuj Jain and Phoenix ARC cases. 4. The rights of the appellants as secured creditors under the pledge agreement. 5. The impact of the resolution plan on the appellants' rights. Summary: Issue 1: Belated Claim as Secured Financial Creditor The appellants argued that their claim as a secured financial creditor was not belated, asserting a continuous cause of action. They contended that there is no prescribed limitation under the Insolvency and Bankruptcy Code (IBC) for objecting to creditor categorization. However, the NCLAT dismissed their appeal, noting that their claim had been rejected in 2017 and was not challenged then. The Supreme Court upheld this view, stating that the appellants did not challenge the rejection of their claim in 2017 and only sought inclusion in the Committee of Creditors (CoC) in 2020. Issue 2: Qualification as Financial Creditors The appellants claimed a creditor-debtor relationship with the Corporate Debtor, Amtek Auto Limited, based on loans extended to its group companies for the ultimate benefit of Amtek. They argued that the pledge of shares constituted financial debt under the IBC. However, the Supreme Court referred to the decisions in Anuj Jain and Phoenix ARC, which held that a person with only a security interest in the assets of the Corporate Debtor does not qualify as a financial creditor. The Court found that the appellants did not lend money directly to the Corporate Debtor and thus did not qualify as financial creditors. Issue 3: Applicability of Anuj Jain and Phoenix ARC Cases The Supreme Court examined the decisions in Anuj Jain and Phoenix ARC, which dealt with the status of financial creditors in the context of collateral security and pledged shares. The Court noted that in both cases, the entities holding security interests were not considered financial creditors. The Court found that these decisions were applicable to the present case, as the appellants' security interest in the pledged shares did not make them financial creditors. Issue 4: Rights as Secured Creditors under Pledge Agreement The appellants argued that the Pledge Agreement made the Corporate Debtor a guarantor for the loan amount. However, the Supreme Court rejected this contention, noting that the Pledge Agreement limited the Corporate Debtor's liability to the extent of the pledged shares. The Court emphasized that the appellants were secured creditors to the extent of the pledged shares and had the right to retain the security proceeds from the sale of the pledged shares under Section 52 of the IBC. Issue 5: Impact of Resolution Plan on Appellants' Rights The Supreme Court addressed the issue of whether the resolution plan could override the pledge agreement. The Court noted that the amendments to Section 30(2) of the IBC aimed to protect the interests of creditors, including secured creditors, who are not part of the CoC. The Court held that the resolution plan must meet the requirements of the IBC and protect the rights of secured creditors. The Court directed that the appellants be treated as secured creditors under Sections 52 and 53 of the IBC, allowing them to retain the security interest in the pledged shares and receive proceeds from their sale. Conclusion: The Supreme Court modified the impugned judgment of the NCLAT, holding that the appellants are to be treated as secured creditors entitled to all rights and obligations under Sections 52 and 53 of the IBC, in accordance with the pledge agreement. The appeal was disposed of without any order as to costs.
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