TMI Blog2024 (12) TMI 537X X X X Extracts X X X X X X X X Extracts X X X X ..... ts security interest by issuing notice under Section 13(2) on 20.08.2021 which was already intimated to the liquidator on 10.01.2020. Present is a case where liquidator has communicated the Appellant twice for payment of proportionate share of the liquidation costs on 16.02.2023 and 29.05.2023 although communication was sent in response to the said letter by the Appellant but fact remains that no payment was made by the Appellant towards liquidation costs. Submission of the Counsel for the Appellant that Appellant is ready and has never denied to make the payment shall not make the sub-regulation (3) of Regulation 21A inapplicable. When Appellant has proceeded to realise its security interest it was required to pay the amount as referred to in Regulation 21A (2)(a). The Adjudicating Authority thus, has rightly referred to and relied on Regulation 21A (2) (3). The submission of the Counsel for the Appellant as well as Counsel for the Respondent agreed upon that present is a case where Appellant has communicated its intention to realise its security interest, hence, there is no applicability of Regulation 21A(1). Appellant in Joint Lenders Meeting has agreed for joint sale of the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been disposed of refusing the prayer made in the application. Appellant aggrieved by the order has come up in this Appeal. 2. Brief facts of the case necessary to be noticed for deciding the Appeal are : - 2.1. In the CIRP process of the Corporate Debtor- Bharat NRE Coke Limited, there being no resolution, order of liquidation was passed by the Adjudicating Authority on 11.12.2019. On 10.01.2020, the Appellant- Suraksha Asset Reconstruction Ltd. informed the liquidator of its intention to realise its security interest under SARFAESI Act, 2002. On 22.02.2020, Appellant issued notice under Section 13(2) of the SARFAESI Act for total claim of Rs.141 Crores. IA No.40/KB/2021 was filed by the Appellant seeking direction to liquidator to handover the possession of 47.07 acres of land mortgaged with Suraksha Asset Reconstruction Ltd. Adjudicating Authority vide order dated 07.01.2021 directed the Block and Land Development Officer of Dharwad to carry out a survey to demarcate the land hypothecated to Appellant, and upon such demarcation, the Liquidator of BNCL had to hand over the land to Appellant. Demarcation report was filed on 07.08.2021, thereafter the Appellant issued notice under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24.11.2022. On 16.02.2023, liquidator requested an ad hoc payment of Rs.20 lakhs towards the CIRP and liquidation costs. Appellant requested for a formal invoice to enable disbursal of payment which was never provided by the liquidator. On 18.02.2023, liquidator sent some unrelated sample bills. Appellant has taken symbolic possession by issuing notice under Section 13(4) which was shared with liquidator on 04.04.2024. The possession notice was objected by liquidator and by e-mail dated 29.05.2023, Appellant s security interest was sought to be relinquished under Regulation 21A due to non-payment of costs. Even though liquidator failed to raise any invoice for the same, Appellant was already ready and willing to pay liquidation cost. Appellant having already intimated intention to realise its security interest vide letter dated 10.01.2020, there is no question of relinquishment of security interest of the Appellant. Appellant has right under Section 52 of the IBC to realise its security interest. Appellant having never refused to pay CIRP/Liquidation costs, there is no question of relinquishment of its security interest. Appellant could not proceed to realise its security interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest of Suraksha is subsumed in the liquidation estate. It is submitted that the premises were in possession of Jeju Metals Pvt. Ltd. and it was liquidator of Bharat NRE Coke Ltd. who filed application IA No.1073 of 2021 praying for eviction of Jeju Metals Pvt. Ltd. which was finally allowed on 20.03.2024 and Jeju Metals Pvt. Ltd. has handed over possession of factory to the liquidator on 29.05.2024. Suraksha did not take any steps to evict Jeju Metals Pvt. Ltd. It is submitted that the security interest of the Appellant has been subsumed in the liquidation estate under Regulation 21A (2) and 21A (3) and present is not a case of applicability of Regulation 21A(1). It is submitted that the Appellant has intimated that he will realise its security interest on 10.01.2020. It is further submitted that in the Joint Lenders Meeting dated 17.11.2023, Suraksha agreed to obtain valuation for joint sale of the property by the two liquidators. Further, in the Joint Lenders Meeting held on 22.03.2024, Suraksha agreed for joint sale of the assets of Bharat NRE Coke Ltd. and Gujarat NRE Coke Ltd. by two liquidators. Again on 12.04.2024 in the Joint Lenders Meeting, Suraksha agreed for joint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order passed by Hon'ble NCLT on 11/12/2019. Pursuant to the order of the learned Adjudicating Authority, various public announcements were made whereon Suraksha Asset Reconstruction Limited (SARL) submitted their claim on 09/01/2020 through an email and later by registered post stating that SARL would not relinquish their security interest. 2. In reply the erstwhile liquidator through an email dated 30/01/2020 enquired about certain matters including the proportionate cost of CIRP Liquidation cost. Subsequently, the relevant provisions of IBC were also specifically intimated and pointed out to SARL and SARL was repeatedly informed of its obligations with regard to and towards bearing the proportionate cost of CIRP Liquidation cost (including estimates) through several mails on 30/06/2020 and 27/10/2020 sent by erstwhile liquidator. 3. The demands, requests and representations contained in the aforesaid emails were ignored and not even responded to by you and as such you failed to pay any heed towards any of these mails. Finally, the undersigned, being the present liquidator, had demanded an immediate payment of Rs. 20,00,000/- (Rupees Twenty Lacs only) towards the proporti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsha Bagri Bharat NRE Coke Limited Liquidator Insolvency Professional FCA, CS, CMA P-273 Maniktala Main Road, Kolkata-700054 (M) 9339239644 8. It was after issuance of the aforesaid e-mail, Appellant filed the application challenging the said e-mail. Prayers made in the IA No.1069 of 2023 are as follows:- i. Allow the present application and quash the emails dated 29.05.2023 sent by the Liquidator for being unlawful; ii. Direct that no coercive action pursuant to such emails dated 29.05.2023 and/or any emails thereafter should be taken by the Liquidator of BNCL which may be prejudicial to the interest of the Applicant as a secured financial creditor; and iii. Pass any such other order(s) and further order(s) as this Hon'ble Tribunal deems fit and proper in the facts and circumstances of the present case. 9. Section 52 of the IBC empowers secured creditors to relinquish its security interest to the liquidation estates or to realise its security interest in the manner as specified in Section. Section 52(1) is as follows:- 52. Secured creditor in liquidation proceedings. - (1) A secured creditor in the liquidation proceedings may- (a) relinquish its security interest to the liquid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ptcy Board of India (Liquidation Process) (Amendment) Regulations, 2019.] 11. In the present case, there are ample materials to indicate that Appellant has informed the liquidator of its decision to relinquish its security interest. Letter dated 10.01.2020 relied by the Appellant is referred, thus, there is no applicability of Section 21A(1) in the present case. Reliance which has been placed by the liquidator is on sub-regulations (2) and (3) of Regulation 21A. In the present case, the Appellant after informing the liquidator on 10.01.2020 proceeded to realise its security interest by issuing notice under Section 13(2) on 20.08.2021 which was already intimated to the liquidator on 10.01.2020. Present is a case where liquidator has communicated the Appellant twice for payment of proportionate share of the liquidation costs on 16.02.2023 and 29.05.2023 although communication was sent in response to the said letter by the Appellant but fact remains that no payment was made by the Appellant towards liquidation costs. Submission of the Counsel for the Appellant that Appellant is ready and has never denied to make the payment shall not make the sub-regulation (3) of Regulation 21A inapp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove meeting, all the stakeholders agreed to the suggestion of the liquidator towards joint sale of the assets. Another Joint Lenders Meeting relied by the Counsel for the Respondent is the Joint Lenders Meeting dated 12.04.2024 where again two representatives of Suraksha were present which is reflected from Annexure R-6 of the reply. In the minutes, it was noted that Suraksha although having agreed in the Joint Lenders Meeting held on 12.04.2024 for joint sale has filed the appeal against the order passed in IA No.1069 of 2023. The representatives of Appellant intimated that they have no instructions from the apposite parties so they are unable to comment on the matter. In the said meeting, even the modalities of the joint sale and appropriation of proceeds to the liquidation estates was mentioned. Suraksha has pleaded in the meeting that the above decision be put to vote, however, other lenders took the view that all having been consented separate voting is not required. 15. We have also noticed the submission of the Counsel for the Respondent that certain issues regarding 32 acres of land claimed by Gujarat NRE Coke Ltd. is pending consideration before the Adjudicating Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X
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