ASHOK BHUSHAN,J. - (1.) This appeal under Section 62 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as "Code") has been filed questioning the judgment of the National Company Law Appellate Tribunal, New Delhi dated 09.04.2019 dismissing the Company Appeal filed by the appellant. The Company Appeal was filed by the appellant against order dated 22.02.2019 of National Company Law Tribunal, Mumbai Bench rejecting the Miscellaneous Application filed by the appellant under Section 60(5) (c) of the Code holding that the appellant is not the financial creditor of the corporate debtor, Doshion Veolia Water Solutions Private Limited.
(2.) Brief facts of this case for deciding this appeal are: L and T Infrastructure Finance Company Limited advanced the financial facility to Doshion Limited, a Company incorporated and registered under the Companies Act, 1956. A Facility Agreement dated 12.05.2011 was executed between the Doshion Limited (borrower) and L and T Infrastructure Finance Company Limited (lender) advancing to the borrower a financial facility of Rs.40 crores repayable in 72 structured monthly instalments. Schedule IV of the facility agreement dealt with "Security Creation". The Board of Directors of Doshion Veolia Water Solutions Private Limited (corporate debtor) passed a Resolution on 26.07.2011 to give Non-Disposal Undertaking in favour of L and T Infrastructure Finance Company Limited whereby Board was authorised to provide an undertaking to the effect that 100% of their shareholding in Gondwana Engineers Limited (GEL) shall not be disposed of so long as any amounts were due and payable and outstanding under the financial assistance proposed to be provided by L&T Infra to borrower. On 10.01.2012 a Pledge Agreement was executed between Doshion Veolia Water Solutions Private Limited and L&T Infrastructure Finance Company Limited by which agreement 40,160 shares of Gondwana Engineers Limited were pledged as a security. On 10.01.2012 a deed of undertaking was also executed by Doshion Veolia Water Solutions Private Limited in favour of L&T Infrastructure Finance Co.Ltd. By agreement dated 30.12.2013 L&T Infrastructure assigned all rights, title and interest in the financial facility including any security, interest therein in favour of Phoenix ARC Pvt. Ltd., the appellant under Section 5 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The borrower, Doshion Limited failed to repay as per agreed terms dated 12.05.2011. The appellant issued a notice dated 19.02.2014 and recalled the financial facility. The appellant filed O.A.No.325 of 2016 before the Debts Recovery Tribunal, Ahmedabad which is said to be pending.
(3.) On 31.08.2018, Bank of Baroda filed Company Petition No.CP(IB)1752/MB/2017 before the Adjudicating Authority under Section 7 of the Code to initiate the corporate insolvency resolution process in respect of the Doshion Veolia Water Solutions Private Limited (Corporate Debtor). By order dated 31.08.2018, the Adjudicating Authority admitted the Company Petition and the corporate insolvency resolution process began. The respondent was appointed as the Interim Resolution Professional of the corporate debtor which was later confirmed as the Resolution Professional of the corporate debtor. Pursuant to the commencement of corporate insolvency resolution process in respect of the corporate debtor, the appellant filed its claim for an amount of Rs. 83,49,85,667/- with the respondent. The respondent vide email dated 20.09.2018 expressed an opinion that as per the Pledge Agreement submitted by the appellant, the corporate debtor's liability was restricted to pledge of the shares only. The respondent sought further documents in respect of the appellant's claim. Although additional documents were submitted by the appellant, the respondent by email dated 23.11.2018 reiterated the earlier view.;