Secured creditors have distinct rights under Sections 52 and 53 of the IBC, separate from those of financial or operational creditors.

JUDGMENT

M.R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 24.08.2020 passed by the National Company Law Appellate Tribunal (NCLT) passed in Company Appeal (AT) (Insolvency) No.703 of 2020 by which the NCLAT has dismissed the said appeal and has confirmed the order passed by the NCLAT passed in IA No.62/2020 in CP (IB) 42/Chd./Hry.2017 preferred by the appellant herein, the original applicant has preferred the present appeal.

2. The facts leading to the present appeal in a nutshell are as under:

2.1 That one Amtek Auto Limited (hereinafter referred to as Corporate Debtor) approached appellant nos. 2 and 3 to extend a short-term loan facility of INR 500 crores to its group companies i.e. Brassco Engineers Ltd. and WLD Investments Pvt. Ltd. for the ultimate end use of the Corporate Debtor. According to the appellants it was an understanding that the Corporate Debtor will create a first ranking exclusive security by way of pledge over 16,82,06,100 equity shares of face value of Rs.2/- each of JMT Auto Ltd. held by the Corporate Debtor (Pledged Shares). A Security Trustee Agreement was executed between the appellant no.1 and WLD for an amount of Rs.150,00,00,000/- on 28.12.2015. The Corporate Debtor’s board of directors passed Board Resolutions whereby the board of directors resolved to create security over the shares of JMT Auto Ltd.

2.2 IDBI Bank issued NOC stating that they had no objection to the proceeds of sale of assets to the extent of a maximum of INR 450,00,00,000 being used to first settle all the dues under the Security Trustee Agreement STFs issued by AAL. The Security Trustee Agreement was executed between the appellant no.1 and Brassco for an amount of Rs.150,00,00,000/-. That thereafter pursuant to the resolution passed on 23.12.2015, the Corporate Debtor’s board of directors passed Board Resolutions whereby the board of directors paid security towards shares. That thereafter one another Security Trustee Agreement was executed between the appellant no.1 and Brassco for an amount of Rs.200,00,00,000/-. That thereafter the Corporate Debtor, WLD, BRASSCO and Vistra executed an amended and reinstated pledge agreement on 05.07.2016 and the Corporate Debtor pledged 66.77% of its shareholding in JMT Auto Limited to secure the term loan facilities availed by WLD and Brassco from KKR and L&T. That thereafter an application under Section 7 of the Insolvency & Bankruptcy Code, 2016 (hereinafter referred to as ‘IBC/Code’) was admitted against the Corporate Debtor/AAL on 24.07.2017. The respondent herein Mr. Dinkar T. Venkatasubramanian was appointed as the interim resolution professional which came to be later confirmed as the resolution professional.

2.3 That on 02.11.2017 the appellant no.1 filed its claim as a secured creditor of the Corporate Debtor and submitted Form C claiming a principal amount of INR 500 crores. However, the claim by the appellants – secured creditors was rejected by the Resolution Professional in 2017, which order was not challenged by the appellants. Resolution Professional received two resolution plans from only 2 resolution applicants being Liberty House Group Pvt. Ltd. (LHG) and Deccan Value Investors (DVI). DVI withdrew its Resolution Plan so the revised plan by M/s LHG was considered by the Committee of Creditors (CoC) which approved the plan on 02.04.2018 with majority voting shares of 94.20%. The Resolution plan submitted by the LHG was approved by the Adjudicating Authority vide order dated 25.07.2018. However, thereafter as the LHG did not fulfil its commitment the Adjudicating Authority passed an order directing reconsideration of the CoC for consideration of DVI’s plan. Thereafter further proceedings were initiated before the NCLAT by the CoC etc. (which are not relevant for the issue involved in the present appeal).

2.4 That thereafter the appellants filed another application under Section 60(5) of the IBC being I.A. No.62/2020 claiming the right on t