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TMI Blog2019 (8) TMI 1746X X X X Extracts X X X X X X X X Extracts X X X X ..... fer of Property Act, no subsequent mortgagee or charge holder shall pay to foreclose or sale of such property without redeeming the prior mortgage or charge. If the contention of the Resolution Applicant is correct that ICICI Bank Ltd issued notice under Section 13(2) of SARFAESI Act to the subsequent charge holder, then it is bound to clear the 1st mortgage or charge which is to be transferred in favour of Resolution Applicant on payment of upfront amount. Thus, law is very clear that subsequent mortgage or charge holder can only proceed over the property only when it discharge the prior mortgage. Actually Resolution Plan provides all details and Resolution Applicant submitted the plan after seeing the Information Memorandum. There is no question of giving permission to Resolution Applicant to withdraw from the Resolution Plan. Already it has paid 10% of the upfront amount. Secondly, it has also given Bank Guarantee. The Plan was approved on 04.06.2019. Because of pendency of these Applications, there is a delay of payment of balance upfront amount. Having filed Resolution Plan which was considered by the CoC who approved the same and really there is no material concealment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of clarification from this Adjudicating Authority for successful implementation of the Resolution Plan which are pending disposal. 4) This Tribunal vide order dated 24.07.2019 extended the time till 30.07.2019 for the Resolution Applicant to deposit the balance upfront amount in the account maintained by. the Resolution Professional and further directed that, in case amount is not deposited by Resolution Applicant by 30.07.2019, the matter will be proceeded according to law. 5) That on 25.07.2019 the Applicant/Resolution Applicant got to know about the demand notice under Section 13(2) of the SARFAESI Act, 2002 which was served upon the Corporate Debtor by M/s. ICICI Bank Limited. This notice under Section 13(2) is dated 16.07.19 which claims that the Corporate Debtor (Aster Building Solutions Private Limited) has, by way of executing declaration and undertaking dated October 15, 2015 created security interest on its leasehold rights over the property situated in Bhootpur in Telangana to secure the facilities aggregating to INR 102.32 Crores granted by ICICI Bank Limited to M/s. Aster Private Limited and called upon the Corporate Debtor in its capacity as Security Provider to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... severally) shall assign a debt of INR 60 Crores (out of the total debt owed by the Corporate Debtor to the CoC) in favour of the Resolution Applicant (YAP Trading Private Limited) along with the underlying security interest held by the CoC, including: i) First charge on the leasehold rights of Aster Private Limited in the Baroda Land. The details of Baroda Land are contained in MOEBaroda. ii) First charge on the leasehold rights of the Corporate Debtor in the Bhootpur Land. The details of Bhootpur Land are contained in MOE-Bhootpur. 5. The Resolution Applicant further averred that it is willing to go ahead with the Resolution Plan and is amenable to the idea of revising its resolution plan after discussions with the CoC to protect the interests of all stakeholders and achieving revival of the Corporate Debtor and maximisation of its assets. 6. It is stated that Applicant would be able to infuse further funds only after the reliefs as sought for in the said application (assignment of debt with underlying security) are granted and confirms that requisite funds are available with the Resolution Applicant to honour its commitment under the resolution plan. In case the reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rge on the said properties transferred through the Resolution Plan then the apprehension of the Resolution Applicant will stand to a quietus. 11. The Counsel for CoC stated that they do not have any objection if a clarificatory order in this regard is passed by the Adjudicating Authority with regard to the question of non-existence / extinguishing the second charge as the underlying security in the event of 1st charge on the property has been transferred through the resolution plan by way of enforcement of mortgage / security by members of CoC /1st charge holder to the Corporate Debtor after receipt of valid consideration for such transfer. OBSERVATION / DISCUSSION 12. We have heard the Counsel for Resolution Applicant and also the Counsel for CoC. The Resolution Professional is present in person. Common order is passed in these two IAs since averments are common but reliefs are different. Therefore, these Applications can be disposed of by a common order. This Tribunal approved the Resolution Plan of the Resolution Applicant on 04.06.2019. The Resolution Applicant filed Applications bearing IAs No. 504, 564 and 627 of 2019 seeking certain clarification for successful im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lution Professional or CoC till such time the revised Resolution Plan be approved and also to restrain the CoC from invoking the Bank Guarantee till then. 18. In the course of hearing, the Learned Counsel for CoC filed a memo stating that this Tribunal was pleased to approve the Resolution Plan filed by the Applicant. It is stated in the memo that the apprehension of the Resolution Applicant that there is a second charge over the lease hold rights held by Consortium of Lenders of parent Company M/s. Aster Private Limited and that in the event of enforcement of said charge then it will cause great hardship to the Resolution Applicant who will be deprived of the properties which as per plan to be transferred to the Resolution Applicant soon after the approval of the Resolution plan. 19. It is further stated in the memo that members of CoC on being consulted, have no objection for pronouncing order in the nature of clarification with regard to the second charge. It is stated in the memo that the charge over the lease hold rights stands transferred to Resolution Applicant which is, in Tact, enforcing the mortgage /security by the first charge holders i.e. members of CoC. So the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ors who are also members of CoC. Clause (6) (ii) provides granting irrevocable lease hold rights in favour of Resolution Applicant in respect of Bhoothpur property for a period of 20 years subject to further extension. Similarly, Clause (6) (C) (iii) provides that granting assignment of lease hold rights in favour of Resolution Applicant in respect of lease of land at Vododara. The parent Company, M/s. Aster Private Limited is the original lessee and land at Vododara as per Resolution Plan which was already given as a sub-lessee to Corporate Debtor which is a subsidiary. Clause 6 (C) 4 is also clear which is as follows:- Further since most of the immovable assets of Corporate Debtor are held on the lease hold properties, the Resolution Applicant requests the Committee of Creditors to assign the interest / rights /obligations what so ever available with the Financial Creditors in the capacity as creditors of Corporate Debtor and on account of Corporate Guarantee from M/s. Aster Private Limited in favour of Resolution Applicant / YTPL 22. Therefore, the creditors to assign the interest rights and obligation arising out of Corporate Guarantee given by M/s. Aster Private L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prior mortgage or charge. If the contention of the Resolution Applicant is correct that ICICI Bank Ltd issued notice under Section 13(2) of SARFAESI Act to the subsequent charge holder, then it is bound to clear the 1st mortgage or charge which is to be transferred in favour of Resolution Applicant on payment of upfront amount. Thus, law is very clear that subsequent mortgage or charge holder can only proceed over the property only when it discharge the prior mortgage. Actually Resolution Plan provides all details and Resolution Applicant submitted the plan after seeing the Information Memorandum. We have already referred to the clauses in the Resolution Plan. 26. So, in the light of above discussion there is no question of giving permission to Resolution Applicant to withdraw from the Resolution Plan. Already it has paid 10% of the upfront amount. Secondly, it has also given Bank Guarantee. The Plan was approved on 04.06.2019. Because of pendency of these Applications, there is a delay of payment of balance upfront amount. Having filed Resolution Plan which was considered by the CoC who approved the same and really there is no material concealment of any matter concerning the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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