Mere security of interest created by mortgage doesn’t constitute a financial debt: NCLAT

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  • Last Updated on 14 November, 2022

financial debt

Case Details: Doha Bank Q.P.S.C v. Anish Nanavaty, Resolution Professional of Corporate Debtor Deloitte Touche Tohmatsu India LLP - [2022] 144 taxmann.com 75 (NCLAT-New Delhi)

Judiciary and Counsel Details

    • Rakesh Kumar, Judicial Member & Dr Ashok Kumar Mishra, Technical Member
    • Arun Kathpalia, Sr. Adv., Shubhabrata ChakrabortiMs Sharmistha GhoshJinal Shah, Advs. for the Appellant.
    • Gaurav Joshi, Sr. Adv. Rishabh JaisaniMs Mohana NijhawanMs Sumidha MathurMohana NijhawahKriti Kalyani, Advs., Amit Sibal, Sr. Adv., Saksham DhingraKaustabh PrakashMs Saloni ThakkarNilang DesaiMs Nafisa KandeparketAyush Chadda, Advs., Pradeep Sancheti, Sr. Adv., Siddharth RanadeMs Nishi BhankhariaKaazvin KapadiaMs Saloni Gupta, Advs., Ramji Srinivasan, Sr. Adv., Ms Rajshree ChaudharyJash Shah, Advs. for the Respondent.

Facts of the Case

In the instant case, the Corporate debtor (RTL) had gone under CIRP based on a company petition filed under section 9 and the Resolution Professional (RP) was appointed. The RP made a public announcement inviting claims from creditors of corporate debtor.

The Appellant-secured financial creditor of the corporate debtor stated that R2 to R5 were not lenders of the corporate debtor, nor had the corporate debtor extended any corporate guarantee in favour of R2 to R5 and only ‘Deed of Hypothecation’ was there as per which corporate debtor hypothecated its asset in favour of R-2 to R-5 to secure loans disbursed by them to its group company RCE.

Based on ‘Deed of Hypothecation’ RP considered R2 to R5. The indirect lenders as the financial creditor. The NCLT by an impugned order had held decision of RP as correct. It was noted that ‘Deed of Hypothecation’ is merely creation of security interest and a mere security of interest created by hypothecation or mortgage does not constitute a financial debt

NCLAT Held

The NCLAT observed that ‘Deed of Hypothecation’ discharges liabilities of other borrowers upon their default and is limited to realization value of those hypothecated assets and, hence, it cannot be construed as a contract of guarantee.

The NCLAT held that ‘Deed of Hypothecation’ cannot be a basis to declare parties as financial creditors and thus, impugned order of NCLT was to be set aside and R-2 to R-5 were derecognized as the ‘financial creditors’

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