MUMBAI BENCH, COURT-V

I.A. No. 1437 of 2024

In

C.P. No. 1245 of 2021

Under Sections 60(5) read with Section 14 of Insolvency & Bankruptcy Code, 2016 And Regulation 32 of

Insolvency and

Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016

I. A. No. 1437 of 2024

IDFC First Bank Limited.

….Applicant

vs.

Mr. Bhuvan Madan

………Respondent

In CP No. 1245 of 2021

State Bank of India

.... Financial Creditor

vs.

Arshiya Northern FTWZ Limited

….Corporate Debtor

Order Dated: 11.12.2024

Coram:

Hon’ble Reeta Kohli, Member (Judicial)

Hon’ble Madhu Sinha, Member (Technical)

Appearance through VC/Physical/Hybrid Mode For the Applicant: Adv. Shyam Kapadia (PH)

For the RP: Sr. Adv. Vikram Nankani (PH)

ORDER

Per: Madhu Sinha, Member (Technical)

1. The Applicant most respectfully prays that this Hon’ble Tribunal be pleased to pass a direction on the Respondent/Resolution Professional of the Corporate Debtor:

 To classify/reclassify/recategorize/categorize/add the Applicant Bank as Secured Financial Creditor of the Corporate Debtor;

 To perform his duties in accordance with the relevant provisions and regulation of the 1B Code;

 To defer any meeting of committee of creditors of the Corporate Debtor during the pendency of the present application till the exercise as set out in terms of prayer(s) (a) above is accomplished;

 In the event, any meeting of COC of the Corporate Debtor is held, to keep the resolution passed in the said meeting, in abeyance till the outcome of the present application;

 In the event any meeting of COC of the Corporate Debtor is held, to defer the voting on any resolution plan by the COC till the outcome of the present application;

 Alternatively, in the event any resolution plan is put to vote and approved, to place the amounts received thereunder in escrow, till the outcome of the present application;

 Pending final hearing and disposal of the application, ad-

interim reliefs in terms of prayer (c), (d), (e) and (f) above; and  For such other reliefs as this Hon’ble Court deems fit and proper in the facts and circumstances of the present case.

Brief Facts and Submission by the Applicant

2. IDFC FIRST Bank Limited ("Applicant"/"IDFC") [amalgamated/ merged entity of IDFC Bank Limited and Capital First Limited] is seeking classification/reclassification as a Secured Financial Creditor from being erroneously classified as Unsecured Financial Creditor of Arshiya Northern FTWZ Limited i.e. the Corporate Debtor ("Corporate Debtor"/ "CD") on the basis of purported absence of a No Objection Certificate ("NOC") from the 1st Charge Holders of the assets of the Corporate Debtor and also on the basis of an order dated 31" March 2023 passed by the Hon'ble NCLT Mumbai Bench in J C. Flower ARC vs Fanendra Munot. The same was communicated by the Respondent to the Applicant vide email dated 24^th April, 2023.

3. Admittedly and undisputably, the Applicant is a direct lender and secured financial creditor of Mira Supply Chain Management Private Limited (Formerly Arshiya Supply Chain Management Private Limited) ("Mira"/ "Arshiya Supply Chain") and the Corporate Debtor has also provided Corporate Guarantee on 23^rd October 2015 for the debts of Mira which has also executed Mortgage Deed in favour of the Applicant Bank to secure the various lending facilities granted by the Applicant Bank to Mira.

4. Incorrect Reliance on the judgement of J C. Flower ARC vs Fanendra Munot vide I.A. No. 2560 of 2021 dated 31^st March, 2023 The above mentioned judgement is on different footing than the facts in the present case. Following are the clear points of variance which distinguish the judgement wrongly relied by the IRP from the present case:

The Applicant vide its email dated 26^th April 2023, duly informed the RP that the above stated judgement is not applicable in the present case and in turn places reliance on the decision of Hon’ble NCLT Bengaluru Bench in IFCI Ltd. v. Kondishetty Kumar Dushyantha IA 224/2022 in CP(IB) 35/2021, relevant extract