2018 (7) TMI 1896

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....ted'. The Adjudicating Authority (National Company Law Tribunal), Chandigarh Bench, Chandigarh, on hearing the parties rejected the claim of the Bank by impugned order dated 17th November 2017. 2. The Adjudicating Authority held that the Andhra Bank cannot be treated to be 'Financial Creditor' in view of Section 3(6) as the Appellant has no right to claim any amount. The Adjudicating Authority further observed that the right of remedy of appellant can arise only in case of breach of contract. 3. Similar plea has been taken by the Respondents-'Resolution Professional' appearing on behalf of the 'Corporate Debtor'. 4. Learned counsel for the Appellant referred to Sections 5(7) r/w (8) of the Insolvency and Bankruptcy Code, 2016 (here....

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.... Insolvency Resolution Process' i.e. the date the application is admitted on behalf of the third party who has availed loan from the 'Financial Creditor'. In case of failure to pay the loan amount given to the third party by the person having obtained guarantee, such person/Creditor is entitled to invoke guarantee to recover the amount from the guarantor, but only after completion of the period of the 'Moratorium'. 8. While 'Moratorium' is declared under Section 13, in terms of clause (b) public announcement of the initiation of 'Corporate Insolvency Resolution Process' should be caused and call for the submission of claims under Section 15 of the 'I&B Code'. In terms of Section 15, on public announcement of 'Corporate Insolvency Resolut....

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.... the advertisement is issued all claimants whether his claim is matured or not are supposed to file claim before the 'Resolution Professional'. The 'Resolution Professional' cannot reject one or other claim on the ground that only the person whose claim has been matured can be looked into and other claim not matured cannot be entertained. 12. The only thing which is to be ascertained is whether the person who claimed to be 'Financial Creditor', whether his debt owed to him come within the meaning of 'Financial Debt' as defined under Section 5(8) which reads as follows: - "(8) "financial debt" means a debt alongwith interest, if any, which is disbursed against the consideration for the time value of money and includes- (....

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....ion for time value of money" then it is treated to be a 'Financial Debt', which may include debt as mentioned in Clause (a) to (i) of Section 5(8). 14. From clause (8) of Section 5, we find that any indemnity obligation in respect of a guarantee also come within the meaning of 'Financial Debt' as defined under the said provision. 15. Admittedly, the 'Corporate Debtor' has counter-indemnity obligation in respect of guarantee given by it to the Appellant- 'Andhra Bank', we hold that Andhra Bank come within the definition of 'Financial Creditor' as defined under Sections 5(7) r/w (8) of 'I&B Code'. The 'Resolution Professional' and the Adjudicating Authority both having failed to consider the aforesaid provisions of law, we set aside the....