ORDER

Balraj Joshi, Member (Technical)

1. This Court convened through hybrid mode.

2. The interlocutory application being I.A. No. 718/KB/2021 has been filed by Mr. Aziz Husain, being the erstwhile managing director of the Corporate Debtor under section 76 of the Insolvency and Bankruptcy Code, 2016 (IBC) seeking the following reliefs against the Respondents herein:

a) To set aside the impugned decision dated July 26, 2021 passed by the Ld. Liquidator;

b) To pass appropriate Order and/or Orders, Direction and/or Directions in order to secure the rights and claims of the Applicant as a secured financial creditor in conformity with the Code;

c) To pass appropriate Order and/or Orders, Direction and/or Directions upon the Ld. Liquidator to take appropriate steps in order to ascertain the location and whereabouts of the said asset being 1 (one) Hitachi Zaxis 120 Excavator bearing Chassis No. 01S1050275 and Engine No. 958344;

d) Such further and/or other Order and/or Order, Direction and/or Directions be given as this Tribunal deem fit and proper.

3. Submissions of the Applicant:

3.1 The case of the Applicant herein is that the Corporate Debtor executed a loan agreement dated June 28 2011 vide Contract No. BJJ00018E with the Applicant. In terms of the said Agreement the Applicant had provided financial assistance to the Corporate Debtor to the tune of Rs.31,35,000/- for purchasing 1 (one) Hitachi Zaxis 120 Excavator bearing Chassis No. 0151050275 and Engine No. 958344 [hereinafter referred to as the "said asset"] on the terms and conditions mentioned in the aforesaid Agreement in which time constituted was an essence of the Agreement. The aforesaid loan was repayable by the Corporate Debtor in 35 monthly installments, however committed a default of Rs.4,27,078.10/- in repayment.

3.2 Subsequently the Applicant recalled the loan and initiated claim before the Sole Arbitrator Mr. S. G. Ramesh Cumar by invoking the Arbitration Clause of the said Agreement. The Ld. Arbitrator subsequently passed an Award dated April 07, 2016 thereby directing the Corporate Debtor to pay Rs.8,10,204/- alongwith future interest.

3.3 The Applicant came across the Public Announcement under Regulation 12 of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016, dated June 01, 2021, and subsequently being a financial creditor filed proof of claim under Regulation 18 of the said Regulations of 2016, dated June 15, 2021.

3.4 Subsequently the Respondent intimated the Applicant that the location of the said asset could not be traced and in case the Applicant is unable to disclose the whereabouts, the Applicant shall be marked as an unsecured creditor of the Corporate Debtor.

3.5 The Applicant duly intimated the Respondent and forwarded the charge register pertaining to the Corporate Debtor wherefrom it was evident that the charge is registered in favour of the Applicant and the same subsists till date. The Respondent however failed to acknowledge the proof of existence of security charge by the Applicant as a secured creditor and it was thereafter vide the impugned decision the Applicant was classified as an unsecured creditor.

3.6 The Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 under Regulation 21 provides that a secured creditor can prove existence of security interest on the basis of registration of charge before the Registrar of Companies. The existence of charge was registered in favour of the Applicant and this was acknowledged by the Liquidator. As such, the Respondent could not have classified the Applicant as an unsecured financial creditor solely on the basis that the said asset was not traceable, even after acknowledging the fact that the charge in favour of the Applicant has been registered with the Registrar of Companies.

3.7 It is submitted that the impugned decision suffers from non- application of mind since the Respondent could not have deprived the Applicant from the category of a secured fina