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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 ..... on of security. The transaction did not even reflect in the Books of Account of the Corporate Debtor. Appellant should be happy that it has been at least treated as Financial Creditor. Appellant took no actions since 2012 and till late stage of CIRP. Charge registered after Resolution Plan is approved cannot be considered. There are no reason to interfere in the Appeal directly filed without subject having been taken up with the Adjudicating Authority at any earlier time nor when the Resolution Plan was being discussed - appeal dismissed. - Company Appeal(AT) (Insolvency) No. 830 of 2019 - - - Dated:- 18-12-2019 - Justice A.I.S. Cheema, Member (Judicial) And Kanthi Narahari, Member (Technical) For Appellant: Mr. Sumesh Dhawan, Ms. Vatsala Kak, Advocates For Respondents: Mr. Kanwal Chaudhary, Advocate, Mr. Anil Agarwalla, Ms. Neha Sharma and Mr. Mahesh agarwalla, Advocates ORDER Heard learned Counsel for the Appellant as well as for the Respondents. 2. It is stated 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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 found that the Charge was registered and so the Appellant was not treated as Secured Financial Creditor and was treated as Unsecured Financial Creditor and this should not be distributed. It is stated that the Resolution Plan was approved by the Adjudicating Authority on 04.07.2019 and not only it has been approved but it has also been implemented. The learned Counsel submits that the Appellant participated in the 3rd Meeting as well as in the 9th Meeting of the CoC and in spite of that did not move the Adjudicating Authority. If the Appellant had a grievance, even when the Resolution Plan was under consideration of the Adjudicating Authority, even at that time, the Appellant did not file any Application or raise any grievance that the Appellant should be treated as a Secured ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... copy thereof within the specified period. Sub-sections (2) and (3) deal with repayment of money secured by the charge. Sub-section (2) provides that the provision of Sub-section (1) shall not prejudice the contract or obligation for repayment of money secured by the charge and Sub-section (3) says that when a charge becomes void under that section, the money secured shall become payable immediately. Though as a consequence of no-registration of charge under Part V of the Act, a creditor may not be able to enforce the charge against the properties of the company as a secured 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assets (Office at Part Street- Anuj Chambers) of the Corporate Debtor (CD) and was thus a secured creditor, to which RP replied that their charge was not registered with ROC (Registrar of Companies), and this was well communicated to India Bulls representatives in the -3rd CoC meeting dated 03.01.2019, that the claim of India Bulls Housing Finance will be considered as Unsecured, until and unless they get their charge registered with ROC. RP read out the extracts of the minutes of 03rd CoC meeting highlighting Agenda -5 of the 03rd CoC minutes, wherein the reasons of considering the exposure of India bulls Housing Finance on CD as unsecured was clearly mentioned highlighting the fact that India Bulls Housing Finance had not created any charge on the assets of CD founded by them, and a charge needs to be created by India Bulls as per process. Moreover, CD had not mentioned the loan from India Bulls neither their asset at Park Street (Anuj Chambers), in their Books of accounts. It was also mentioned in the 03rd CoC meeting minutes dated 03.01.2019, that as per law, RP is supposed to take cognizance of only those assets which are included financial statements of the CD, and it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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