Hdfc Bank Ltd vs Atul Kumar Kansal & Ors

IN THE MATTER OF: HDFC Bank Ltd ...Appellant

Versus

Atul Kumar Kansal & Ors. ...Respondents

Present: For Appellant : Mr. Gaurav Mitra, Mr. Dhruv Gupta, Ms. Arushi and Ms. Jasveen Kaur, Advocates

For Respondent : Mr. Swapnil Gupta, Mr. Vaibhav Mendiratta, Mr. Sajal Jain, Mr. Harshit Gupta and Mr. Tarun Mishra, Advocates for RP/R-1. Mr. Himanshu Kapoor and Mr. Harshal, Advocates for R- 2/SRA. Mr. Rahul Malhotra, Advocate for R-3.

ORDER

(Hybrid Mode)

08.04.2025 Heard Learned Counsel for the Appellant as well as

Learned Counsel for the Respondent. This Appeal has been filed against an

order dated 07.03.2025 by which order Adjudicating Authority has considered

and rejected the objection filed by I.A. No. 3778 of 2022 by the HDFC Bank.

The Appellant's case is that Appellant has mortgage with units having super

areas 8702 sq. ft. at sixth floor of Universal Business Park, with regard to

which conveyance deed was executed in favour of M/s Nayanika Holdings Pvt

Ltd on 14.10.2015. It is submitted that the Appellant having mortgage over

the said units, the said unit could not be made part of the resolution plan and

the only prayer of the Appellant is that the said unit be excluded from the

resolution plan.

Learned Counsel for the Respondent submits that in the present case,

the plan was earlier approved by the Adjudicating Authority in 2021 and

matter was remitted to the Committee of Creditors for consideration of claim

of certain Financial Creditor including Kotak Mahindra Bank Ltd.

Subsequently, after the said plan has been approved. It is submitted that

Appellant has no locus to file any objection.

Learned Counsel for the Respondent submits that the remittance by the

Adjudicating Authority was limited to be purpose of the consideration of the

claim of Financial Creditor and thereafter the plan was approved. We have

considered submission of the Appellant and perused the record.

Appellant claims having mortgage rights on the units which was sold to

M/s Nayanika Holdings Pvt Ltd on 14.10.2015. The conveyance deed which

was executed, there was no Tripartite Agreement between the Corporate

Debtor M/s Nayanika Holdings Pvt Ltd and the bank. The agreement which

is the basis of the claim is the loan agreement executed by M/s Nayanika

Holdings Pvt Ltd in favour of the HDFC Bank. The Adjudicating Authority in

paragraph 26 of the order has made following observations:

"...

26. As can be seen from the aforesaid documents enclosed by the Applicant Bank with the IA, the loan agreement as well as the document recording the mortgaging of the unit no. 618- 626 located at 6th Floor of Universal Business Park was executed between the Applicant Bank and Nayanika Holdings, and was not a tripartite agreement involving the Corporate Debtor. Apparently, as per the stand taken by Applicant itself,

Company Appeal (AT) (Insolvency) No. 549 of 2024 2 of 4 it is not open for this Tribunal to determine the disputed issue between the Applicant and Nayanika Holdings. It is for the Applicant to resort to the remedy available to it before the appropriate forum in accordance with law to seek its relief. We find merit in the contention of the RP that the Applicant Bank has no locus to object to a resolution plan which already stands approved by the CoC. Furthermore, as already noted in the order dated 11.06.2021 of this court, no other issue would be raised by any objector nor decided by CoC. In the wake, I.A. 3778/2022 stands dismissed."

The Appellant when is not the unit holder or any rights in the units

except the mortgage right cannot be heard in asking to exclude the unit. When

the units were taken consideration in the resolution plan and resolution plan

was approved by the unit holders, who either had conveyance deed or builder

buyer's agreement. The Adjudicating Authority has rightly observed that the

Applicant bank has no locus to object to the resolution plan which already

stand approved by the Committee of Creditors. The Adjudicating Authority

has also noticed that by an earlier dated 11.06.2021 of Adjudicating

Authority, no other issues were allowed to be raised by an objector apart from

claim of Financial Creditors. We thus, are of the view that remedy of the

Appellant is against the M/s Nayanika Holdings Pvt Ltd with whom loan

agreement was executed by deposit the title deed. The Appellant cannot raise

any objection in the resolution plan or with regard to unit. We do not find any

error in the order of Adjudicating Authority, rejecting the application.

Company Appeal (AT) (Insolvency) No. 549 of 2024 3 of 4 However, this shall not preclude the Appellant to take such remedy in law as

permissible against the M/s Nayanika Holdings Pvt Ltd.

The Appellant has also relied on judgment of this Tribunal in Deepak

Sakharam Kulkarni vs. Manoj Kumar Agarwal in 2024 SCC OnLine

2562, he is relied on paragraph 176 and 218. The observations made by this

Court, was in respect of the person who was claiming right in the units and

those units were included in the plan to which the Corporate Debtor had no

rights, in the above background the observations in paragraph 176 and 218

has been made and the said judgment does not come to the aid of the

Appellant in the facts of the present case.

The Appeal is dismissed.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical)

[Arun Baroka] Member (Technical) pks/nn

Company Appeal (AT) (Insolvency) No. 549 of 2024 4 of 4