Canara Bank vs Sh. Vivek Kumar Resolution ...

Comp. App. (AT) (Ins) No. 390 of 2023 & I.A. No. 1301, 1302 of 2023

IN THE MATTER OF: Canara Bank ...Appellant Versus Vivek Kumar Resolution Professional of AVJ ...Respondent Developers (India) Pvt. Ltd. Present For Appellant : Mr. Hitesh Sachar, Anju Jain, Anisha, Advocates For Respondents : Mani Gupta, Aman Choudhary, Sonali Jain, Soumya Upadyaya, S. Mukherjee, Advocates ORDER

(Virtual Mode)

Per: Justice Rakesh Kumar Jain: (Oral)

19.12.2023: This appeal is directed against the order dated 10.02.2023

passed by the Adjudicating Authority (National Company Law Tribunal,

Principal Bench, New Delhi) by which I.A. No. 836 of 2023 filed by the

Appellant (Canara Bank) praying therein to be declared as a secured financial

creditor has been declined.

2. The pleaded case of the appellant is that it had advanced various amount

to the Corporate Debtor for booking their units. The Corporate Debtor is in

CIRP, therefore, the Appellant filed a claim before the RP on the ground that

they are the financial creditor as they have lent money to the home buyers.

This claim was rejected by the RP on 01.09.2022. Aggrieved against that

decision of the RP, the application bearing I.A. No. 836 of 2023 has been filed

which too has been dismissed vide the impugned order relying to a decision of

this Tribunal in the case of Axis Bank Vs. Value Infracon India Pvt. Ltd. & Anr. CA (AT) (Ins) No. 582 of 2020 decided on 20.12.2021 in which it has been held

that :-

"17. Be that as it may, we are of the considered view that this subject matter cannot be viewed from such a narrow compass. It is definitely not the scope and objective of the Code to include Banks/Financial Institutions which have advanced loans to Home Buyers to be considered as 'Financial Creditors' and included in the CoC, specifically in the light of the fact the liability to repay the Home Loan is on the individual Home Buyers. This would defeat the very spirit and objective of the Code aiming at Resolution and maximisation of the assets of the 'Corporate Debtor'. Presence of a mere tri-partite Agreement does not change the character of the amount borrowed by the Home Buyer vis-a-vis the Bank and vis-a- vis the 'Corporate Debtor'. Viewed from any angle, the Appellant cannot be included as a 'Secured Financial Creditor' in this case".

3. Although Counsel for the Appellant has vehemently argued that the

impugned order is bad in law but he could not cite any judgment to the

contrary to the decision rendered in the Case of Axis Bank (Supra), therefore,

we do not find any merit in the present appeal and the same is hereby

dismissed. No costs.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Naresh Salecha] Member (Technical)

sheetal/ravi