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2024 (1) TMI 832

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..... ault committed by the Corporate Debtor in servicing the 1st Loan? - Whether it was given for restructuring of the 1st Loan and hence, the Appellant is entitled to retain the Security Interest over the Secured Assets in terms of the Tripartite Agreement entered into on 14.06.2017? HELD THAT:- It is the main case of the Appellants that the emails dated 08.04.2019, 18.05.2019 and 22.05.2019 were not brought on record and these emails were essential for deciding the subject issue on hand. The Learned Senior Counsel Mr. V. Prakash, appearing for the Applicants / Appellants drew our attention to email dated 22.05.2019 and the Letter dated 08.04.2019, in support of his case that the First Respondent was requested for issue of NOC in favour of the Appellants. The Learned Senior Counsel Mr. E. Om Prakash appearing for the First Respondent, drew attention to the date and time of retrieval of these emails showing that the emails were printed within a few minutes from the Email ID of the Promoter of the Corporate Debtor Company and that nothing turns on these emails as the fact remains that there is no evidence on record that the 2nd Loan was taken to restructure the 1st Loan. Subsequ .....

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..... both the Corporate Debtor Companies and to appoint the Resolution Professional, as the Liquidator. 2. The Adjudicating Authority has disposed of both these Applications, with the following directions: 38. In order to carry out the process and for completion and handing over of the 71 sold flats to the homebuyers, this Tribunal passes the following orders and directions; i. The Liquidator appointed by this Tribunal shall be in-charge for the completion of the project 'GRT Grand'. ii. It is stated that the RP /Liquidator has obtained the quote from the contractors and the same has also been shared to all the stakeholders. Hence, the Liquidator shall take all earnest steps to complete the project 'GRT Grand' within a period of 4 months from the date of this order. iii. The Liquidator shall open three Bank Accounts viz. (i) for the project GRT Grand, (ii) for the Liquidation of the Corporate Debtor - 1 (iii) for the Liquidation of the Corporate Debtor - 2. iv. Since the Financial Creditor viz. Reliance Home Finance Limited is in possession of title deeds in respect of various flats of the Corporate Debtor, we direct Reliance Home Finance Limi .....

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..... 9; account. viii. The Liquidator alone is authorized to use the Bank account opened in the name of 'GRT Grand'. ix. The amount lying in the said 'GRT Grand' account shall only be used for the completion of the project and not for any other purpose. The said account is required to be audited by a Chartered Accountant every month and the same shall be filed before this Tribunal. x. No internal work will be done for the homebuyers who have possession of the respective units. xi. Since, as on date there are no funds available for the completion of the project, the homebuyers are requested to pay the balance receivables in order to complete the project. xii. Only after obtaining the completion certificate and service connections; and receipt of the balance dues from the respective homebuyers, the RP/Liquidator shall handover the respective units to the homebuyers. xiii. After handing over of the units to the homebuyers, the surplus amount lying in the 'GRT Grand' account shall be transferred to the 'Liquidation account of the Corporate Debtor-1' and 'Liquidation account of the Corporate Debtor-2 in the proportion of 25:75 .....

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..... sts of Home Buyers, certain directions were given as to the completion of the Project and Allotment of Flats to the Home Buyers and the proceeds in respect of the sold flats to be distributed. It is stated in the Impugned Order dated 11.10.2023 that as there was no `Stay against the Order dated 12.09.2023, considering the facts in totality, the Second Respondent in IA(IBC)/669/CHE/2022 and the Appellant herein was restrained from enforcing the Mortgage, Hypothecation or any Security Interest on the Secured Assets and was also directed to handover all the documents, relating to the Secured Creditor, pending disposal of the Application, within three days from the date of the Impugned Order. 5. Aggrieved by the aforenoted directions, these Appeals are preferred. The Learned Senior Counsel Mr. V. Prakash, appearing for the Appellants strenuously argued that the Appellants were not a Party to the Liquidation Applications and that the directions given in the Impugned Order affect the interest of the Appellants with respect to the Secured Assets and also prejudice their rights. The Learned Senior Counsel submitted that the Corporate Debtor Company had availed Credit Facility from LICH .....

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..... the Corporate Debtor, the Appellant has no right over the Project land and even if such a right exists, it shall be sub-servient to the rights of LICHFL, since the NOC for 1st Charge was only with respect to the 1st Loan provided by the Second Respondent. It is argued that the Appellant vide their Reply dated 07.09.2021 had categorically denied that the loan availed by the Corporate Debtor was discharged in full and it was further clarified that the amount due and outstanding arises out of the restructuring of the 1st Loan sanctioned by LICHFL on 31.05.2017 and therefore, the 1st Charge of the Project land remains with the Appellant. 8. The Appellant being a secured Financial Creditor of the Corporate Debtor was a Member of the Committee of Creditors with a Claim of Rs.6,48,54,691/-, as on the date of the initiation of the Corporate Insolvency Resolution Process. During the pendency of the `CIRP , there was only one Resolution Applicant, who was the Erstwhile Director of the Corporate Debtor and this Plan was rejected by the Corporate Debtor in its 16th Meeting held on 18.07.2022 and it was resolved to appoint the First Respondent as the Liquidator. It is contended by the Learn .....

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..... lant vide Sanction Letter dated 31.05.2017 and in relation to the 1st Loan, the Corporate Debtor, the First and Second Respondents, and the Appellants entered into a Tripartite Agreement dated 14.06.2019, under which, it was agreed that the First Respondent will cede the 1st Charge on the Secured Assets in favour of the Appellant; that the 1st Respondent will have the 2nd Charge, until the 1st Loan is settled; the First Respondent issued an NOC dated 14.06.2017 ceding the 1st Charge over the Secured Assets and took the 2nd Charge subject to the condition that the NOC was in respect of the 1st Loan and on repayment of the 1st Loan, the First Respondent will become the 1st Charge Holder; that based on the NOC, the Mortgage Deed dated 30.06.2017 was executed in favour of the Appellant to secure the 1st Loan; in 2019, the First Respondent received Letters from the Appellant and the Corporate Debtor Company requesting the First Respondent to provide similar NOC to provide Secured Assets as Collateral for another Loan of Rs.7,96,81,736/-, which is actually a 2nd Loan Sanctioned vide a 2nd Sanction Letter dated 31.03.2019 and that the NOC for the 2nd Loan which was requested was never iss .....

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..... t was given for restructuring of the 1st Loan and hence, the Appellant is entitled to retain the Security Interest over the Secured Assets in terms of the Tripartite Agreement entered into on 14.06.2017. 16. Since the sanctioning and disbursal of the 1st Loan vide Letter dated 31.05.2017, the Tripartite Agreement entered into on 14.06.2017 and the NOC issued on 14.06.2017, are not in dispute, we address to the main point for consideration stated in Paragraph No.15. 17. At the outset, the Sanction Letter dated 31.01.2019 is reproduced as hereunder : 18. The aforenoted Sanction Letter, given to the Corporate Debtor Company by the Appellant for `Construction Finance Loan for an amount of Rs.7,96,81,736/- does not anywhere state that it is for restructuring the 1st Loan or that it is in continuation of the 1st Loan. The terms and conditions appended to this Sanction Letter also do not refer to any restructuring of the 1st Loan. It is also seen from the record that the Loan Account Number of the 1st Loan is RHCFCHE000053223 and the Second Loan is RHCFCHE000074642. The Account Statements, which are part of the record also evidence that both the Loans have distinct Loan Acc .....

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..... ons were required to be allowed. 23. It is the main case of the Appellants that the emails dated 08.04.2019, 18.05.2019 and 22.05.2019 were not brought on record and these emails were essential for deciding the subject issue on hand. The Learned Senior Counsel Mr. V. Prakash, appearing for the Applicants / Appellants drew our attention to email dated 22.05.2019 and the Letter dated 08.04.2019, in support of his case that the First Respondent was requested for issue of NOC in favour of the Appellants. 24. The Learned Senior Counsel Mr. E. Om Prakash appearing for the First Respondent, drew our attention to the date and time of retrieval of these emails showing that the emails were printed within a few minutes from the Email ID of the Promoter of the Corporate Debtor Company and that nothing turns on these emails as the fact remains that there is no evidence on record that the 2nd Loan was taken to restructure the 1st Loan. Subsequent to letter dated 08.04.2019, the email dated 20.05.2019, seeking for release of NOC establishes that the restructuring never took place and the NOC was never issued for the 2nd Loan. 25. At this juncture, we find it apposite to reproduce the ema .....

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