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TMI Blog2025 (2) TMI 593X X X X Extracts X X X X X X X X Extracts X X X X ..... of CIRP had been filed by FC on 04.02.2019 and after its filing, the Appellant designedly included a journal entry dated 31.03.2020 on the basis of which the machinery was taken out from the books of the CD to avoid the asset going to the hands of the creditors of the CD and as soon as the RP came to know about it, the application bearing I.A No. 787 of 2023 was filed. The basic argument of the Appellant is that the machinery was leased out to the CD has to be established by way of a lease deed because it is a transaction between two companies and the lease amount has also to be mentioned but neither the lease deed nor the amount of lease has seen the light of the day rather the CD had hypothecated the machinery with the FC while securing the loan in terms of the loan agreement dated 06.06.2014 and in terms of clause 5(a)to(c) of the said hypothecation agreement, CD has created charge in respect of the machinery and a declaration has been made by the CD that the machinery has already been acquired and shall form part of prompters contribution to the loan sanctioned by FC. The last but not the least, the CD had admittedly claimed depreciation on the machinery as an owner because a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereinafter referred to as the 'machinery') allegedly owned by it and not to include it in the Information Memorandum of the CD as it cannot form part of the resolution plan of the SRA. 5. The Tribunal before dealing with application bearing I.A No. 3478 of 2022 filed by the RP for approval of the resolution plan of the SRA, having been approved by the CoC, has dealt with both the applications bearing I.A No. 787 of 2023 and 12 of 2023 in order to resolve as to whether the machinery is owned by intervenor/appellant as alleged and can it form part of the IM and also the resolution plan. The Tribunal has dismissed I.A No. 12 of 2023 and allowed I.A No. 787 of 2023 vide its impugned order. It is categorically mentioned that in both these appeals filed by Saturn Ventures & Advisors Pvt. Ltd. (first appeal) and Satish Gopinath (second appeal) the issue is the same as to whether the machinery is the asset of the CD and can form part of the plan submitted by the SRA. 6. In the first appeal, Counsel for the Appellant has submitted that the machinery was purchased on 05.07.2012 vide invoice no. 0012040867 and 0012040868 from National Engineering Industries Limited (NEI) and has been decla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further submitted that present proceedings were filed on 04.02.2019 and the said decision of repossession of asset is taken after the filing of present proceedings with an intent to defraud the creditors. The RP also stated that the machinery has been recognised as fixed assets of the CD in balance sheet in the year 2017 and depreciation has been claimed on it. 11. The Tribunal has found that the dispute in the applications is pertaining to ownership of the machinery as it is the case of the Appellant that machinery was never sold to the CD rather it was given on lease for use of the CD whereas the case of the RP is that the machinery has been accounted for in the books of the CD and has been taken out of the fixed assets block of the CD by way of journal entry passed on 31.03.2020. 12. The Tribunal has found that Intervenor got this machine on 05.07.2012 from NEI and declared as part of capital work in progress in its audited balance statement. 13. It has also been found that the Appellant had obtained loan on the security of the machinery from the IndusInd Bank and that one of the officers of IndusInd Bank is the wife of Mr. Satish Gopinath, a common director of he CD as well ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f availing loan, all along proves that the machinery belongs to the CD and not to the Appellant and in this background the journal entry dated 31.03.2020 was reversed, the application I.A No. 787 of 2023 is allowed and IVN. P No. 12 of 2023 was dismissed. 17. It is pertinent to mention that CD had already executed hypothecation cum loan agreement on 06.06.2014 with the FC whereby the machinery alongwith other machines were hypothecated. The FC had created charge over machinery much prior to the hypothecation in favour of IndusInd Bank by the Appellant which is otherwise not permissible much less without making intimation or taking approval from the FC because such hypothecation was clearly bad in law. It is also pertinent to note that application under Section 7 for initiation of CIRP had been filed by FC on 04.02.2019 and after its filing, the Appellant designedly included a journal entry dated 31.03.2020 on the basis of which the machinery was taken out from the books of the CD to avoid the asset going to the hands of the creditors of the CD and as soon as the RP came to know about it, the application bearing I.A No. 787 of 2023 was filed. It is also worthwhile to note that in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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