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TMI Blog2022 (4) TMI 939X X X X Extracts X X X X X X X X Extracts X X X X ..... nsequently direct the respondent not to interfere with Applicant's right to realise the security interest and thus render justice. Submissions by the Applicant 2. The applicant herein is a nationalised bank. In the year 2017, the applicant advanced two vehicle loans amounting to Rs. 10,59,000 and Rs. 6,31,000 respectively. 3. It is averred in the application that on 02.03.2018, one M/s. Kameng Dam Hydro Power Limited wrote to the Applicant Bank enclosing therewith a letter issued by the Corporate Debtor, referring to the Fixed Deposit Receipt (FDR) No. 19050310045848 amounting to Rs. 55,00,000 placed by the Corporate Debtor with the Applicant and requesting the Applicant Bank to advance a loan of Rs. 50,00,000 to M/s. Kameng Dam Hydro Power Ltd. against the security of the FDR. 4. It is further averred that, on 31st March 2018, M/s. J R Power Gen Private Limited approached the Applicant Bank enclosing therewith a letter issued by the Corporate Debtor, referring to the Fixed Deposit Receipt (FDR) No. 190503100046265 amounting to Rs. 1,43,65,595 placed by the Corporate Debtor with the Applicant and requesting the Applicant Bank to advance a loan of Rs. 1,22,53,644 to M/s. J R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2021 informing constitution of stakeholder's committee and the applicant was classified as an Unsecured Creditor. It is pointed out by the Ld. Counsel of the applicant that the claim was still pending with the respondent and the applicant did not receive any communication under section 40 of the Code from the respondent. 11. Thereafter, on 03.07.2021, the respondent communicated its decision in respect of applicant's claim. The same is extracted as under: In accordance with section 38, 39 and 40(2) of the Insolvency and Bankruptcy Code, 2016 ("the code") read with Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016, we wish to inform your good office that further to your claim submitted in relation to the liquidation process of Sai Regency Power Corporation Private Limited amounting to INR. 2,37,43,488, kindly note that the claim of INR. 14,66,538, w.r.t. vehicle loan availed by the Corporate Debtor, is in nature of an unsecured debt since the charge created in relation thereto is not registered under section 77(1) of the Companies Act, 2013. In view of the same, there can be no enforcement of security in relation to the vehicle loan availed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of particulars of such transaction with the Central Registry for creation, modification or satisfaction of such security interest or attachment order, as the case may be. (2) Where security interest or attachment order upon any property in favour of the secured creditor or any other creditor are filed for the purpose of registration under the provisions of Chapter IV and this Chapter, the claim of such secured creditor or other creditor holding attachment order shall have priority over any subsequent security interest created upon such property and any transfer by way of sale, lease or assignment or licence of such property or attachment order subsequent to such registration, shall be subject to such claim: Provided that nothing contained in this sub-section shall apply to transactions carried on by the borrower in the ordinary course of business. 14. The applicant submits that on perusal of section 52 read with Reg. 21 and 37 of the Code, it is seen that once, the applicant herein intimates the respondent about its decision to realise the security, the liquidator does not have the power to hold on the said security interest. With regard to rejection of the 02nd claim, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect to the Third Party Loans with CERSAI was dated 18.06.2021 and in respect of the Vehicle the registration was dated 07.07.2021. 17. The Ld. Counsel of the respondent submits that the registrations with CERSAI have been done after the date of filing of claim Form D and cannot be the basis for treating the applicant bank as a secured creditor. Further, in terms of regulation 21A of the Liquidation Regulations, a secured creditor is required to intimate its intention to realise its security interest within 30 days from the liquidation commencement date. In the instance case, these 30 days period expired on 27.05.2021 and hence subsequent registration with CERSAI cannot be taken advantage of by the applicant bank. 18. Submissions in respect of the vehicle loans: The liquidator stated in the impugned communication that since the subsistence of security interest has not been proved by the applicant bank in a manner prescribed under the Code, the claim would be admitted as unsecured financial debt. 19. Submissions in respect of the Third Party Loans: a. It is submitted that the fixed deposits of the corporate debtor was provided as collateral to secure the loans availed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and identify the asset subject to such security interest to be realised. (3) Before any security interest is realised by the secured creditor under this section, the liquidator shall verify such security interest and permit the secured creditor to realise only such security interest, the existence of which may be proved either- (a) by the records of such security interest maintained by an information utility; or (b) by such other means as may be specified by the Board 22. Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations 2016. Regulation 21: Proving security interest: 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. 23. From Section 52(3) of the Code read with aforenoted Regulation 21 provides that the proof of security interest is ascertained from records available with the 'Information Utility' as per the Code, through C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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