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TMI Blog2019 (11) TMI 1521X X X X Extracts X X X X X X X X Extracts X X X X ..... Professional (Respondent No. 1). Keeping in mind that the reliefs sought vide both these Applications are almost the same, both these Applications are being disposed of vide the same order. 2. It is the case of HDFC (Applicant in M.A. No. 999/2019) that they had granted a construction financial facility amounting to Rs. 380 crores (Rs. 150 crores and Rs. 230 crores) to the Corporate Debtor (hereinafter "Ariisto") for its projects at Mulund. The total outstanding due to HDFC at the time of filing its claim before the Interim Resolution Professional is Rs. 468.64 crores. 3. On 17.05.2018, The Corporate Debtor defaulted in repayment of the two loans, and therefore HDFC issued a demand notice in respect of each loan to the Corporate Debtor under Section 13(2) of the SARFAESI Act. However, since on 20.11.2018, this Hon'ble Tribunal passed an Order admitting the captioned petition filed by Dipco Pvt. Ltd. and ordered the commencement of the insolvency resolution process, HDFC therefore filed their claim with the IRP on 06.12.2018. 4. HDFC submits that, pursuant to submissions of claims, the IRP had adjudged the voting share of each creditor on the CoC, and HDFC's share was fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that, at the time of adjudicating claims, there was no proof before the RP of the locus standi of Respondent No. 3 and Respondent No. 4, for either of them to claim the status of a financial creditor on the basis of the DTD. 11. It is the case of the Applicant that the Respondent Nos. 3 and 4 are unable to satisfy the criteria laid down in Regulation 8(2)(b)(ii) since they have neither committed any amounts to the Corporate Debtor under a facility, nor has the Corporate Debtor drawn such amount. The borrowing is by Aristo Shelters Pvt. Ltd. and Ashvi Developers Pvt. Ltd. 12. It is argued that the Balance Sheet of the Corporate Debtor does not recognise the Respondent Nos. 3 and 4 as 'Secured Creditors'. They are recognised as collateral/contingent security holders; therefore, they cannot be termed as financial creditors of the Corporate Debtor. (M.A. No. 1124/2019) 13. Dipco has filed this Application against the Resolution Professional, Vistra ITCL (India) Limited and M/s. Aasan Corporate Solutions Private Limited. It is the case of Dipco that despite there being no debtor-creditor relationship between the Corporate Debtor i.e. Aristo, Vistra and Aasan, the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vocal mandate of the legislature. 20. Thereafter, arguing on the merits of the case without causing any prejudice to their preliminary objections, it is stated that it is trite in law that the beneficiary of debentures, i.e. the debenture holders, are as much entitled to seek remedy for enforcement of their contract and recovery of the amounts due to them as the debenture trustee appointed on their behalf. Reliance for the said argument has been placed on the following: a. Narotamdas T. Toprani v. Bombay Dying & Mfg. Co. Ltd. [(1990) 68 Comp Cas 300] b. M.C. Chacko v. The State Bank of Travancore, Trivandrum [1969 (2) SCC 343] c. Essar Steel Limited v. Gramercy Emerging Market Fund [(2003) 116 Comp Cas 248] 21. It is therefore submitted that the beneficiaries of the debentures are equally entitled to enforce the security created in their favour by such debentures and seek payment of the amounts due and payable to them pursuant to the same. The Ld. Counsel for the Respondents 2-4 has apprised the bench about the total claims of the Respective Respondents, details of which has been given below: CLAIMS OF RESPONDENT 2 - Claim I [First Deposit]: Principal : Rs. 50,00,00,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eliance for the same has been placed on Swiss Ribbons Private Limited and Another Versus Union of India and Others [ (2019) 4 SCC 17] 25. It is stated that the fact regarding the Corporate Debtor being a co-obligor is not disputed. Therefore, as per the Resolution Professional liability of the co-obligor, i.e. the Corporate Debtor, is the same as that of the principal debtor under the documents on record. It is further stated that the financial documents, as indicated, provides that in the event of any default the entire 'outstanding amount' as due and payable by each co-obligor under the financial documents, is the liability of each co-obligor, including the Corporate Debtor herein, who is admittedly a co-obligor. 26. It is argued that the decision of the Resolution Professional is based on the documents and the amounts admittedly due and payable under the documents and therefore the same cannot be considered as faulty. 27. After going through the entire facts of the matter, also the objections raised by the Respondents for both the Applications this Adjudicating Authority is of the opinion that the issue has to be Adjudicated first on the Preliminary Objection raised b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Supreme Court had given lot of thought to conclude in the abovesaid manner for the reason that the approval of the Resolution Plan actually crystallises the exact value of the plan within which the secured Financial Creditors can be considered for the payment purely depending upon there entitlement and ratio as decided by the CoC. Filing of Claims even before the Resolution plan is approved would only result in unnecessary delays and further would act as negative factor in attracting the possible Resolution Applicants. There are several other reasons for that, which need not be elucidated at the present moment. Therefore, in our view of the matter the preliminary objection raised by the Respondents as regards the maintainability of both the Applications are very much sustainable and it is clear that the Applicants have knocked the doors of this Tribunal even before the issue is ripe for adjudication. Therefore, it is trite law that all applications of the nature such as the present application can be filed and/or considered only after the resolution plan is in place and before this Hon'ble Tribunal for approval / adjudication. 29. Coming down to the facts the entire case i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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