2017 (11) TMI 1115 - Tri - Insolvency and Bankruptcy

Corporate insolvency process - Held that - Managing Director of the Company has referred to certain proceedings held by this Tribunal to press upon the contention that in the circumstances of the case, this Tribunal has taken cognizance of the offence, therefore, a direction should be given for lodging the complaint and for investigation. This contention deserves to be out rightly rejected, as holding of the proceedings for disposal of the application under consideration, cannot by any stretch of imagination amount to taking cognizance of the alleged fraud.

Issues:
1. Application to re-call orders of admission and appointment of Interim Resolution Professional.
2. Allegations of fraudulent concealment of charge assignment by the Financial Creditor.
3. Request for filing a criminal complaint against the Financial Creditor.
4. Dispute over the assignment of debt to Asset Reconstruction Company.
5. Maintainability of the application by the Corporate Debtor.
6. Jurisdiction of the Special Court under Section 236 of the Insolvency and Bankruptcy Code.
7. Allegations of false information furnished in the application.

Analysis:
1. The application was filed under Section 75 read with Section 236 of the Insolvency and Bankruptcy Code to re-call the orders of admission and appointment of the Interim Resolution Professional (IRP). The Applicant contended that the charge held by the Financial Creditor had been assigned to the Asset Reconstruction Company (ARCIL), alleging fraudulent concealment by the Financial Creditor.
2. The Applicant accused the Financial Creditor of deliberately concealing the assignment of the charge over the property to ARCIL, thereby misleading the Tribunal during the initial application process. The Applicant sought permission to file a criminal complaint against the Financial Creditor for the alleged fraudulent actions.
3. A dispute arose regarding the assignment of debt to ARCIL, with the Financial Creditor denying any assignment and asserting that the Corporate Debtor had obtained loans from multiple banks, including ARCIL. The Financial Creditor claimed that the assignment was a result of the lead bank's request and the existence of a paripasu charge.
4. The Tribunal found the application filed by the Corporate Debtor to be not maintainable, as the Corporate Debtor had no locus standi to challenge the orders of admission and appointment of the IRP. The Tribunal cited a Supreme Court ruling emphasizing that only the Insolvency Resolution Professional could address any indications of fraud.
5. The Tribunal analyzed the provisions of Section 75 and Section 236 of the Code, highlighting the consequences of furnishing false information in the application and the trial of offenses by a Special Court. The Tribunal deemed the application frivolous and mala fide, dismissing it for lack of merit.
6. The Tribunal scrutinized the documents filed with the Registrar of Companies, noting discrepancies in the description of charges and highlighting the importance of proper documentation for charge creation. The Tribunal emphasized that mere record updates with the ROC could not affect the rights of the mortgagor without proper documentation.
7. The Tribunal dismissed the application, finding no merit in the allegations of fraudulent concealment by the Financial Creditor. The Tribunal emphasized the disclosure of complete facts by the Financial Creditor during the initial petition filing and rejected the request for lodging a complaint based on the proceedings held for the application under consideration.

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