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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 ..... P has rightly considered the absence of any proof of security document and then declared the applicant as unsecured financial creditor, at par with financial creditors in class of creditors being home buyers. In absence of any registration of charge in the ROC record of the corporate debtor, the present applicant needs to be recognized as unsecured financial creditor. Moreover, the resolution plan is approved by CoC and the resolution applicant cannot be put to hardship of facing new claim/new category of a claim. The present application fails and is rejected. - IA No. 510/2019 in CP (IB) No. 1059/ND/2018 - - - Dated:- 1-7-2021 - Dr. Deepti Mukesh, Member (J) And Sumita Purkayastha, Member (T) For the Appellant : Satish Rai, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hers has been approved, in violation to all the legal principles and statutory provisions as keeping the Applicant in the category of an unsecured creditor despite of the fact that the Applicant's debt against the Corporate Debtor is secured by way of allotments of units in favour of the Applicant. 4. The applicant submits that the Corporate Debtor has availed loan facilities vide Loan Agreement dated 27.12.2017 from the Applicant from time to time to the tune of INR 9,23,00,000/- and interest of INR 1,89,21,500/- and it was secured by way of units of flats as mentioned in the agreement. 5. The applicant submits that on 18.12.2018, his claim was submitted under statutory Form C, under Regulation 8 of the IBBI (Insolvency Resolutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication qua the Security, could have been sought only within 7 days from the receipt, as per Regulation 13. However, the RP for the first time, referred the Applicant as an unsecured creditor, without any premise, rhyme, reason or power to do the same and accordingly allowed there solution plan to be put up before CoC in its sixth meeting for vote, including the Applicant as an unsecured financial creditor. That such act of mechanically, without putting the Applicant on notice, thereby illegally reviewing the verification by the IRP is non est in law. 8. The applicant submits that the RP herein under complete defiance of provisions of the I B Code, 2016, classified the Applicant as an unsecured creditor despite having complete knowled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Corporate Debtor and such class has been held to be entirely unsecured. Therefore, treating the Applicant as a secured financial creditor would be against the principle of equity iii. That upon perusal of the agreement entered between the Applicant and the Corporate Debtor, it has been observed that the properties which have been proposed as security against the loan were non-existent as on the date of the agreement and are in the same position as on date. Therefore, no security could have been created on such assets. iv. That there is no substantiation by the Applicant behind the averment that they had been admitted as a secured financial creditor by the IRP. Further, in complete compliance of Regulation 13 of the IIBI (Insolv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudicating authority sided with the decision taken by CoC of not recognizing the Appellant as a secured creditor while the Appellant advanced a feeble argument that the said transaction is an equitable mortgage without a charge registered. 10. The RP submits that in September, 2019 when the resolution plan was being considered by the Committee of Creditors the instant Application was moved by the Applicant which was listed on 07.11.2019. It is submitted that on 17.10.2019 the resolution plan was already approved by the CoC with 87.57% voting share. Consequently, the Application for approval of Resolution Plan was filed by the Resolution Professional before this Tribunal. The applicant had not obtained any stay against RP, and it is cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hence, once a Resolution Plan was approved by the CoC, no claim can be accepted and the same shall amount to 'hydra head popping', which would throw into uncertainty the amounts payable by the prospective Resolution Applicant who successfully takes over the business of the Corporate Debtor. b) That the decision rendered in the above mentioned judgment was followed by the Hon'ble NCLAT in the matter of JSW Steel Limited vs. Mahendra Kumar Khandelwal and Ors. [(2020) 155 CLA 27] , wherein the Hon'ble NCLAT held that 'Successful Resolution Applicant' cannot be asked to face with undecided claims after the 'Resolution Plan' submitted by him and accepted by the 'Committee of Creditors' as this wou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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