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TMI Blog2019 (12) TMI 1489X X X X Extracts X X X X X X X X Extracts X X X X ..... tated that Corporate Insolvency Resolution Process (in short CIRP) was initiated against Network Industries Ltd situated at Kolkata in which Resolution Plan was submitted by the Respondent No. 2- Gloster Ltd which came up for approval before the Adjudicating Authority (National Company Law Tribunal) Kolkata Bench, Kolkata and it was approved by Impugned Order dated 04.07.2019. The present appeal has been filed by the Appellant against the acceptance of the Resolution Plan. 3. It is the case of the Appellant that the Appellant was treated as Unsecured Financial Creditor in the Resolution Plan although according to the Appellant, the Appellant should have been treated as a Secured Financial Creditor. Learned Counsel for the Appellant has arg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity of the Corporate Debtor to get the Charge registered and thus the Appellant could not be made to suffer. It is argued that in spite of this, the Appellant applied to ROC on 05.12.2018 for registering its charge and when ROC pointed out that Delay Condonation Application was required, the same was filed on 19.07.2019 and the Charge has now been registered on 03.10.2019. Submission of the learned Counsel for the Appellant is that the Appellant should be treated as Secured Financial Creditor. 4. Learned Counsel for the Resolution Professional states that the deliberation as noted in the above two meetings of CoC show that the CoC consciously considered the claim which was being made by the Appellant but going by the provisions it was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of creation of Charge, (referring Section 78 of Companies Act, 2013) there is an option even for the Charge Holder to move ROC and get the Charge registered. It is the submission that no such steps had been taken till CIRP started. The benefit cannot be taken by such Creditor. Learned Counsel refers to the Judgment in the matter of "Oil and Natural Gas Corportio9n Ltd. Vs. Official Liquidator of Ambica Mills Co. Ltd. and Ors." -MANU/SC/0319/2014. She referred to paragraph-20 of the Judgment where the Hon'ble Supreme Court referred to its judgment in the matter of "Indian Bank Vs. Official Liquidator, Chemmeens Exports(P) ltd. and Ors." It is argued that Hon'ble Supreme Court referred to Section 125 of the Old Companies Act which w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... creditor in the event of liquidation of the company as the charge becomes void against the liquidator and the creditor, yet he will be entitled to recover the debt due by the company on a par with other unsecured creditors. It is also evident that Section 125 applies to every charge created by the company on or after 1-4-1914. But where the charge is by operation of law or is created by an order or decree of the court, Section 125 has no application." ... 6. On the basis of this, learned Counsel submits that if under the general law the Creditor could not take benefit then under the IBC, it could not be taken. 7. Having heard learned Counsel from both the sides, who made submissions as above, it would be appropriate to reproduce the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cognizance of unknown claims remains a challenge. RP and his team also read to the COC the provisions of section 71 of IBC pertaining to fines on CD for falsifying the books of the corporate debtor to which the COC members said that similar provision is there u/s 65 of IBC for concealment of property to which RP and his team said that the same can be challenged at NCLT and NCLAT if so required." ... 8. Reference also needs to be made to the portion of the discussion which was placed in the 9th Meeting (Annexure-A7-Agenda-4, page-81) which reads as under: ..... " AGENDA-4 .... India Bulls Housing Finance Ltd representative queried why their claim was being considered as unsecured, though they have equitable mortgage on the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not required for consideration as Secured Creditor as per IBC. SIDBI representative conveyed that as CD had not mentioned the assets as founded by India Bulls in their Balance sheet, and also since the debt of India Bulls was not appearing in the Balance sheet of the CD and India bulls also had not registered their charge with ROC despite given such a long period since 3rd CoC meeting to regularize the creation of charge, the liability thereby itself is not acknowledge as per companies Act." ... 9. It is thus clear that the CoC had made it clear that in absence of Charge being registered, the Appellant could not be treated as Secured Financial Creditor. Although the transaction is stated to be of 2012, it is clear that the Charge was n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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