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TMI Blog2025 (2) TMI 636X X X X Extracts X X X X X X X X Extracts X X X X ..... 2013. This is in consonance with Section 77 of the Companies Act 2013. Section 78(3) of the Companies Act, 2013 states no charge shall be created by the Company shall be taken in account by the "Liquidator" unless it is registered under subsection 1 and 2. Section 77 (4) of the Companies Act, 2013 clarifies nothing in subsection (c) shall prejudice any contract or obligation for repayment of money secured by charge. The obligation is only on the Liquidator. In fact, Section 3 (4) of IBC defines charge and Section 3 (31) of IBC states secured interest means and includes "Charge". Thus, combine reading of all the section clarifies only a Liquidator will not consider a claim without registration, however, the RP is bound to consider a "Charge" and a Creditor having charge is a Secured Creditor. Conclusion - i) Non registration of charge per Section 77 of Companies Act, 2013 will not make a difference in the claim of the Applicant being treated as a Secured Creditor. ii) There exists a debt and the Corporate Debtor had secured it by creation of security interest/charge., therefore, the Appellant is a secured financial creditor. Necessary correction be thus made in the record. The ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oan shall be twenty nine (29) months (Loan Period) to be commenced from the date of receipt of the first tranche of Loan amount (Loan Period). The Developer shall within fifteen (15) days from the expiry of the Loan Period i.e. on or before November 15, 2017, repay the entire Loan to the Firm in the manner provided in this Agreement. "3.1 It is agreed by and between the Parties that the Developer would be liable to pay to the firm, interest on a lump sum basis of Rs.____(Interest Amount) on the Loan from the date of receipt of the Loan tranches as provided above in Clause 2, till expiry of the Loan Period as and by way of interest during the entire loan period. 3.2 However, in lieu of the Interest Amount Payable by the Developer to the Firm on the Loan advanced in terms of this Agreement, the Developer has proposed to allot, transfer and assign to the Firm, in consideration of the Interest Amount four apartments being apartment No.s 1501, 1502, 1504 and 1601, admeasuring in aggregate about 4508 sq ft carpet area and 9304 sq ft saleable area, on the 15th and 16th floor of the Building to be constructed on the Property by the Developer together with four car parking spaces in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the execution of this Agreement sign and execute a Power of Attorney (POA) in favour of the Firm thereby inter alia, authorising (1) the Firm or its partners/representatives to register the AFS of Secured Apartments in terms of this Agreement and (2) such other matters incidental to the main matters including but not limited to procuring the NOC from ECL Finance. 4.1.3 The signed and executed AFS of Secured Apartments shall, however, neither be stamped nor registered but shall be kept in escrow with Rajani, Singhania and Partners, Solicitors (Escrow Agent) 4.1.6.3 have the AFS of Secured Apartments duly stamped and registered and have the Secured Apartments conveyed, transferred and assured unto the Firm absolutely in lieu of the repayment of the Loan. 4.1.7 In the event the Firm opts to have the Secured Apartments conveyed, transferred and assured in favour of the Firm, the Escrow Agent shall, upon receipt of joint intimation from the Parties that the Developer has failed to repay the entire Loan within the Loan Period set out herein, immediately release the signed and executed AFS of Secured Apartments and the POA to the Firm. 5.3 In the event the Developer repays the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noticed that Section 77(3) the Companies Act, 2013 provides that no charge created by a company shall be taken into account by the liquidator appointed under this act or I&B code or any other creditor unless it is duly registered u/s 77(1) and a certificate of registration is given by the Registrar. Accordingly, this bench is of the view that the resolution professional has not committed any error in classifying the applicant as unsecured financial creditor." 9. The respondent relies upon the reasoning given in the impugned order. 10. Heard. 11. Section 77 (3) of Companies Act 2013 read as follows:- "Notwithstanding anything contained in any other law for the time being in force, no charge created by a company shall be taken into account by the 'liquidator' or any other creditor unless it is duly registered under sub-section (1) and a certificate of registration of such charge is given by the Registrar under sub-section (2). (4) Nothing in sub-section (3) shall prejudice any contract or obligation for the repayment of the money secured by a charge." 12. A bare reading of Section 77 (3) of Companies Act, 2013 casts an obligation upon 'Liquidator'. However, the present case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or' by a 'transaction' which 'secures payment' or performance of an obligation and includes mortgage, charge, hypothecation, assignment and encumbrance or any other agreement or 'arrangement' securing payment or performance of any obligation of any person. Section 3(33) states that "transaction" includes an 'agreement' or 'arrangement in writing' for transfer of assets, or funds, goods or service from or to the Corporate Debtor and section 3(34) of IBC states that transfer includes mortgage, pledge, gift, loan or any other form of transfer of right, title or lien. 'Registered Charge under section 77' is not mentioned in the definition of 'secured creditor' and infact a creditor is secured by way of any 'arrangement' like the 'loan agreement' in present case which secures 4 flats as secured property of Appellants against repayment of its Loan. 16. This Tribunal in "Canara Bank vs. Mr. S. Rajendran, Liquidator of M/s Cape Engineers Pvt. Ltd. [Company Appeal (AT) (Ins) No. 277 of 2023]" held: "53. In addition, the `non-registration of the Mortgage', as per Section 77 of the Companies Act, 2013, is not a sufficient / enough ground, to come to an `opinion', that the `Appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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