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TMI Blog2019 (5) TMI 1749X X X X Extracts X X X X X X X X Extracts X X X X ..... terms ascertained that the applicant is the first charge holder of the fixed assets of the corporate debtor - the applicant is entitled to realize their security interest under section 52(1)(b) read with regulation 37 of the IBBI (Liquidation Process) Regulations, 2016. The issue is decided in favour of the applicant - As regards the current assets, it is held that the applicant does not have the first charge. Whether this Tribunal has jurisdiction to determine on the issue of disputed question of fact as to who the first charge holder is? - HELD THAT:- There is not a single document which raises even an iota of doubt as to the question who the first charge holder is. When the entire documents are in favour of the applicant, excepting a frivolous/untenable claim by the Edelweiss on the issue of first charge does not create a bar on this Tribunal to decide the issue as to who is the first charge holder on the basis of uncontradictable/undisputable documentation. First of all there is no tenable dispute as regards the facts in question for the reason all the documents are uncontradictable and the genuine of the same is not in question. Even otherwise, it is held that it is the exclus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orporate debtor ; (c) Pending the completion of the sale of the secured assets of the corporate debtor (RTIL Ltd.) as more particularly described in annexures 1 and 2 hereto, the secured assets of the Mysore Unit of the corporate debtor should be directed to be under the possession, overall control, supervision and direction of the applicant herein ; (d) For costs ; and (e) For such further and other reliefs as this Tribunal may deem fit and proper in the nature and circumstances of the present case. 2. The MA has been filed by one of the financial creditors of the corporate debtor, Finquest Financial Solutions P. Ltd., claiming sole first charge over all the fixed assets and first pari passu charge over the current assets of the corporate debtor. By way of this application, the applicant seeks permission to realize their security interest by selling or disposing of the secured assets of the corporate debtor on "as is where is" basis as a going concern as per section 52 of the Insolvency and Bankruptcy Code, 2016 read with regulation 37 of the IBBI (Liquidation Process) Regulations, 2016. The applicant has sub- mitted an envelope to this Tribunal as well as to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... At serial No. 24, the name of the applicant, i. e., Finquest Financial Solutions P. Ltd., is shown as a charge holder and the same has been cre ated on July 31, 2008 and modified on August 31, 2016 for the loan granted for the amount of ₹ 327 crores. Annexure 6 : Assignment agreement dated October 10, 2016 The assignment agreement was executed between ICICI Bank Limited and Finquest Financial Solutions Private Limited (assignee). The assignor has assigned rupee term loan of ₹ 275 crores in favour of the applicant including any security interest created by the borrower. Annexure 7 : First pari passu charge over the schedule A properties and second charge over the Schedule B properties At serial No. 16 the name of the applicant, i. e., Finquest Financial Solutions Pvt. Ltd. is shown as a charge holder and the same has been created on September 17, 2009 and modified on October 10, 2016 for the loan granted for the amount of ₹ 275 crores. At serial No. 24, the name of the applicant, i. e., Finquest Financial Solutions Pvt. Ltd. is shown as a charge holder and the same has been created on July 31, 2008 and modified on August 31, 2016 for the loan grant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e issue of priority of charges has not been adjudicated by the hon'ble Court of Civil Judge Sr. Division at Nanjangud, Karnataka under Suit No. 84 of 2013 (Suit). 4. Edelweiss has further stated that this hon'ble Tribunal does not have the jurisdiction to determine disputed questions of facts regarding the validity/ existence of the registered same ranking pari passu charges of secured creditors over the same asset. They have submitted that since the applicant is not the sole secured creditor, it is not open for the applicant to realize its security interest to the exclusion of other secured creditors having first charge over the same asset under the misconceived notion of allegedly being a prior exclusive first charge holder of the asset. 5. In support of the said objection, Edelweiss has relied upon the following annexures : Exhibit A-Minutes of the second meeting of the committee of creditors of RTIL Ltd. The minutes of the CoC meeting shows that the voting share of the applicant is merely 20.02 per cent. whereas that of Edelweiss is 23.40 per cent. of the total claim basis the claim amount admitted by the Resolution Professional. Exhibit B-Copy of Suit No. 84 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The liquidator has submitted a reply stating that he has verified the documents submitted by the financial creditors including the applicant and also verified documents available with the Registrar of Companies with respect to the security held by the charge holders. Basing on this, the liquidator submits that the applicant is the sole first charge holder of the immovable property of the corporate debtor at Mysore and the movable fixed assets of the corporate debtor. The applicant holds only a second pari passu charge over the current assets of the corporate debtor. In support of the same, the liquidator has provided the following information in the form of a table. The same has been reproduced below : Name of charge holder Date to which charge over movable property relates Date to which charge over immovable property relates Applicant-Loan of INR 150.78 crores acquired from IDMPL October 26, 2007 for the charge on fixed assets of SKNL (predecessor in title) and February 2, 2009 for the charge over the movable assets of RTIL February 14, 2008 for the charge on fixed assets of SKNL (predecessor in title) and June 12, 2009 for the charge over the immovable assets of RTIL. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the averments made in Suit No. OS84 of 2013 on the file of the Civil Judge (Senior Division), Nanjangud at paragraph 5 it is clearly mentioned as follows : "Plaintiff No. 2 entered into a legally binding debenture subscription agreement dated May 25, 2007 with defendant No. 2 as amended by addendums dated August 13, 2008 and November 5, 2008 (hereinafter collectively referred to as debenture subscription agreement wherein plaintiff No. 2 have subscribed to 304,50,000 secured non- convertible debenture having a face value of INR 100 each (herein after referred to as NCD's) issued by defendant No. 2)." 9. The said document has been marked as annexure A of the said suit. It is pertinent to note that the suit has not been filed by the applicant but by the predecessor to the charge holder, i. e., IDBI Trusteeship Services Ltd. acting in its capacity as a debenture trustee to IDM. Therefore, subsequent to the execution of the assignment deeds in favour of the applicant, the applicant was impleaded into the suit to protect his own interest as he is a proper and necessary party. 10. The point to be noted is that the entire rights of the applicant with regard to the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t have the first charge. 11. As regards issue No. 2, in this particular case documents speak for themselves. There is not a single document which raises even an iota of doubt as to the question who the first charge holder is. When the entire documents are in favour of the applicant, excepting a frivolous/untenable claim by the Edelweiss on the issue of first charge does not create a bar on this Tribunal to decide the issue as to who is the first charge holder on the basis of uncontradictable/undisputable documentation. First of all there is no tenable dispute as regards the facts in question for the reason all the documents are uncontradictable and the genuine of the same is not in question. Even otherwise, we hold that it is the exclusive prerogative of this Tribunal which is exclusively vested with the power to adjudicate the matters relating to and connected with the insolvency and bankruptcy law particularly the process of liquidation and the related measures to be adopted in the said process of liquidation. This is just not a substantive law but also a procedural law. Therefore, we hold that this Tribunal can decide on the issues of disputed question of fact when the document ..... X X X X Extracts X X X X X X X X Extracts X X X X
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