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TMI Blog2021 (7) TMI 556X X X X Extracts X X X X X X X X Extracts X X X X ..... ptcy Code, 2016 for seeking directions against the Resolution Professional of M/s. Subhkamana Buildtech Private Limited ("The Respondent") of inter alia for following prayers: i. Pass an order in favour of the Applicant and against the Respondent directing the Respondent to classify the Applicant as a Secured Financial Creditor; ii. Put the Resolution Plan again in terms of the change in status of the Applicant as a Secured Financial Creditor as per prayer A above; 2. The Corporate Insolvency Resolution Process of M/s. Subhkamana Buildtech Private Limited ("The Corporate Debtor") was initiated vide Order dated 26.11.2018 by this Tribunal. The Interim Resolution Professional namely Mr. Gurkamal Hora Arora, made public announcement for i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ormed the premise of the financial debt. 6. The applicant further submits that the members of the CoC including the Applicant have been referred to as the Financial Creditor only and the category of secured and unsecured was never mentioned or clarified by the IRP/RP. The same itself is contrary to Regulation 13 (verification of claims) of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, where in the IRP was required to update the same. That as per the Regulations, upon the receipt of the Claim, which Form C in the present case under Regulation 8 (claim by financial creditor), the IRP was under obligation to seek substantiation of the claims or part thereof or the security which formed the part of the claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e security claimed could not be admitted. Since I & B Code, 2016 along with the regulations framed there under are silent on the aspect of proof of security interest with respect to CIRP, reliance for the same is placed on Regulation 21 of the IBBI (Liquidation Process) Regulations, 2016: The existence of a security interest may be proved by a secured creditor on the basis of- (a) the records available in an information utility, if any; (b) certificate of registration of charge issued by the Registrar of Companies; or (c) proof of registration of charge with the Central Registry of Securitisation Asset Reconstruction and Security Interest of India. That on verification of the records available with the prescribed authorities, no s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the office of the RP and was at all times available for the Applicant to peruse. v. That as regards the registration of charge in terms of Companies Act is concerned, it is reiterated that the Applicant neither got the charge registered under section 77 (Duty to register charge) of Companies Act, 2013 through the corporate debtor nor the applicant himself got the charge registered section 78 (Application for registration of charge) of the Companies Act. Therefore, the Applicant was correctly categorized as an unsecured financial creditor by the RP. Section 77(3) of the Companies Act, 2013 is a non-obstante clause, which provides that a Liquidator under appointed under the I & B Code, 2016 shall only consider those charges into account, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (SC)]", which has held as follows: "67. For the same reason, the impugned NCLAT judgment in holding that claims that may exist apart from those decided on merits by the resolution professional and by the Adjudicating Authority/Appellate Tribunal can now be decided by an appropriate forum in terms of Section 60(6) of the Code, also militates against the rationale of Section 31 of the Code. A successful resolution applicant cannot suddenly be faced with "undecided" claims after the resolution plan submitted by him has been accepted as this would amount to a hydra head popping up which would throw into uncertainty amounts payable by a prospective resolution applicant who successfully take over the business of the corporate debtor. All claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;ble NCLAT in the case titled Santosh Wasantrao Walokar vs. Vijay Kumar V. Iyer and Anr. [CA(AT)(Ins) No. 871-872/2019), decided on 24.01.2020, wherein it was held that the Resolution Applicant cannot be suddenly faced with undecided claims after the Plan submitted by him has been accepted. 12. Heard submissions and perused the documents. We find force in the contention of the RP. Considering the fact that the loan was disbursed to the corporate debtor by the applicant but the said is not supported with any documentary evidence to show the creation of security interest as mentioned in IBBI (Liquidation Process) Regulations, 2016. Hence, the arguments that the present applicant needs to be classified as secured creditor cannot be accepted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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