TaxTMI 
TaxTMI 
2020 (10) TMI 386
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....td (EUIPL), therefore issued 5250 (no.s) senior, secured, transferable, unlisted, unrated, redeemable, Non Convertible Debentures ("NCDs") having face value of Rs. 1,00,000/- and raised a sum of Rs. 52,50,00,000/-("Principal Amount") under a Debenture Trust Deed ("DTD") dated 13.06.2017. The Financial Creditors, Nisus Finance & Investment Managers LLP. and Beacon Trusteeship Limited are the Facility Agents and Debenture Trustee, respectively, appointed for the benefit of the debenture holders under the said Debenture Trust Deed. 3. The present Petition has been filed against Earthcon Construction Pvt. Ltd. "Corporate Guarantor" (i.e., the Corporate Debtor herein) who had secured the repayment of the Principal amount along with the interest under the above mentioned DTD. This Corporate Guarantee was unconditional and irrevocable and was given by the in favour of the Debenture Trustee to secure the repayment of amounts raised under the DTD if the Principal Borrower fails to pay all the secured obligations on the date of redemption. 4. That it was agreed that the Principal amount shall be repaid by the Principal Borrower in 4 equal quaterly instalments ("Principal Repayment Date....
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....d prematurely to cause detriment to the Borrower's as well as the Corporate Debtor interests, and acted in contravention of agreed terms and conditions between the parties. ii. As per the understanding being reached the funds being extended by the Financial Creditors to the Borrower were supposed to be with the borrower for the period of 30 months, on basis thereof Borrower had planned execution of its project for which the facility was availed, nonetheless the Financial Creditors deliberately and purposely, to deceive the borrower as well as the Corporate Debtor only allowed the said funds to be with the Borrower only for a period of 19 months. The Financial Creditor asked for repayment of part of the facility before the expiry of the tenure of investment/date of maturity which was 31.12.2019 or 30 months from the date of the 1st tranche, is gross violation of the agreed terms and conditions. iii. The Corporate Debtor had also invoked the arbitration clause in pursuance to the Clause 51 of the Debenture Trust Deed dated 13.06.2017. The notice dated 24.06.2019 invoking the arbitration clause was sent by the Corporate Debtor to the Financial Creditors. The Fina....
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....Apex Court vide its order dated 30.09.2019 has stayed the order dated 23.08.2019 passed by the Hon'ble NCLT. iii. The Corporate Debtor has relied on the judgment passed by the Hon'ble NCLAT in the matter of Vishnu Kumar Agarwal Vs. M/S. Piramal Enterprises Ltd. Passed in case No. CA (AT) Insolvency No. 346 of 2018 on 08.01.2019. The Corporate Debtor placed its reference on paragraph No. 29, 31 & 32 of the said judgment which are reproduced herein below: 29. In the present case, the 'Financial Creditor'- ('M/s. Piramal Enterprises Ltd.') has claimed that it was owed financial debt of Rs. 40,28,76,461/- from 'Sunsystem Institute of Information Technology Put. Ltd.'- ("Corporate Guarantor No. 2"), which means that the 'Financial Creditor' was owed debt which is disbursed against the time value of money. Once such claim is made by the same very 'Financial Creditor'-('M/s. Piramal Enterprises Ltd.') against one of the 'Corporate Debtor' ('Corporate Guarantor No. 2') in respect of same financial debt for triggering 'Corporate Insolvency Resolution Process' and such application is admitted (o....
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....9;). Further, though there is a provision to file joint application under Section 7 by the 'Financial Creditors', no application can be filed by the 'Financial Creditor' against two or more 'Corporate Debtors' on the ground of joint liability ('Principal Borrower' and one 'Corporate Guarantor', or 'Principal Borrower' or two 'Corporate Guarantors' or one 'Corporate Guarantor' and other 'Corporate Guarantor'), till it is shown that the 'Corporate Debtors' combinedly are joint venture company. iv. That the Financial Creditors have already filed their claim before the CoC constituted in terms of the order dated 23.08.2019 and as the claimed amount in the instant petition is exactly similar and identical to the claim which is already filed by Beacon before the said CoC therefore, the CIRP could not be triggered against the Corporate Debtor (CD) in this petition. The Principle Borrower, namely EIPL is already into CIRP and the matter is currently pending before the Hon'ble Apex Court and the CIRP has not been yet quashed or set aside by the Hon'ble Apex Court. There exists no cause of action....
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....dipping" or unjust enrichment" on the part of the Financial Creditors as its claim will be resolved only once and not twice. The Code provides a statutory right to the Financial Creditor to elect against whom he wishes to institute the CIRP. 11. On perusal of the documentary evidences placed on record and submissions made by both the parties, this Adjudicating Authority is of the view that a Financial Creditor can, in relation to a debt under Section 7 of IBC 2016, proceed against two Corporate Guarantors or one Corporate Guarantor and the Principal Borrower and there is no bar/per se. The judgment passed by the Hon'ble NCLAT in the matter of Vishnu Kumar Agarwal Vs. M/S. Piramal Enterprises Ltd. Passed in case No. CA (AT) Insolvency No. 346 of 2018 on 08.01.2019 it was held that if, for the same set of claim, an application has been admitted against one of the corporate debtors (i.e. principal borrower or corporate guarantor(s)), second application by the same financial creditor, for the same set of claim and default, cannot be admitted against the other corporate debtor. Further, it was held that, for the same set of debt, a claim cannot be filed by a financial creditor in....