9911796707
TMI Blog2022 (12) TMI 1201X X X X Extracts X X X X X X X X Extracts X X X X ..... on 14.8.2018, Rs.35,00,000/- on 21.8.2018 and Rs.50,00,000/- on 21.8.2018 and Rs.40,00,000/- on 1.9.2018. However, the respondent had committed default in repayment of the loan amount and the tenure for repayment had also expired and accordingly, the respondent is liable to pay a sum of Rs.1,96,06,986.08 as on 15.5.2019 to the appellant. Therefore, the appellant invoked Section 9 of the Arbitration and Conciliation Act, 1996 by filing Application No.3703 of 2019 to prohibit the Garnishees to make payment to an extent of Rs.1,96,06,986.08 or any amount to the respondent and also directing the Garnishees to deposit the sum of Rs.1,96,06,986.08 or any amount to the credit of A.No.3703 of 2019. 2.2. This Court, in its order dated 07.06.2019 prohibited the Garnishees from making payment of a sum of Rs.1,96,06,986.08 to the respondent herein and subsequently by another order dated 06.11.2019, has directed the Garnishees to deposit the said amount, if any lying with them, upto a limit of Rs.1,96,06,986.08, which is due and payable by the respondent herein. The appellant had also initiated arbitration proceedings and final award was also passed in favour of the appellant in Arbitration Ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clared, inter alia, against the continuation of pending proceedings against the respondent Company and appointed a Liquidator to the respondent Company. According to the respondent herein, the applicant, being a Liquidator of the Company under liquidation, attempted to recover the monies owed to the Company under liquidation. Further, the respondent has also submitted its proof of claim in the capacity as the Liquidator of the respondent Company claiming (i) principal amount of Rs.1,27,77,777.05 in terms of the Trip Loan agreement dated 17.4.2018; (ii) Legal charges of Rs.24,135/-; and (iii) Additional Financial charges of Rs.77,56,165/- in respect of the very same claim. Therefore, the liquidator of the respondent Company seeks to recover its dues qua the applicant/respondent Company in accordance with the procedure envisaged under Insolvency and Bankruptcy Code, 2016. According to the Liquidator of the respondent Company, Section 35 of Insolvency and Bankruptcy Code, 2016 read with Regulation 39 of the IBBI (Liquidation Process) conferred right to the Liquidator to recover and realize all assets of and dues to the corporate debtor in a time bound manner for maximization of value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the judgment, decree, order or recovery certificate, will give rise to fresh cause of action in favour of the creditor. It also held that such a decree could be used as proof of debt to initiate proceedings under the Insolvency and Bankruptcy Code'2016 within three years from the date of the decree." 9. The Hon'ble Apex Court in the judgment in Swiss Ribbons Vs. Union of India reported in (2019) 4 SCC 17 had upheld the validity of Section 53(1) of Insolvency Code, which prescribes priority of distribution of assets in liquidation. 10. In the present case, the respondent has submitted its proof of claim in the capacity as the Liquidator of the respondent Company claiming (i) principal amount of Rs.1,27,77,777.05 in terms of the Trip Loan agreement dated 17.4.2018; (ii) Legal charges of Rs.24,135/-; and (iii) Additional Financial charges of Rs.77,56,165/- in respect of the very same claim. Therefore, the Liquidator of the respondent Company seeks to recover its dues qua the applicant/respondent Company in accordance with the procedure envisaged under Insolvency and Bankruptcy Code, 2016. According to the Liquidator of the respondent Company, Section 35 of Insolvency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vailable for distribution amongst the creditors qua Navrang inter alia in accordance with Section 53 of IBC in the pending CIRP before NCLT i.e. National Company Law Tribunal, Ahmedabad Bench (Court No.2) vide proceedings bearing reference CP(IB) 368/NCLT/AHM/2019.'' 12. A mere perusal of the above observations of the Hon'ble Supreme Court in the decisions cited supra, shows that the liability in respect of a claim arising out of a recovery certificate issued by the DRT would be considered as "financial debt" within the ambit of Section 59(8) of Insolvency and Bankruptcy Code, 2016. It has also held that the underlying claim of the Bank/Claimant under the lending documents would have to be categorised as a "financial debt" under Insolvency and Bankruptcy Code, 2016. Therefore, a recovery certificate issued in respect of the same claim, which is essentially a crystallization of the claim through the process of adjudication, had also be classified as a "financial debt" under Insolvency and Bankruptcy Code, 2016. Consequently, the nature of the underlying claim of the creditor, would determine the categorisation of the amount payable under the final decree passed adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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