TaxTMI 
TaxTMI 
TaxTMI 
2020 (7) TMI 757
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....ogether for disposal by a common order. 2. Further, before recording the order, it is necessary to state that for the purpose of easy reference Bharat Aluminium Co. Ltd, is referred as the Applicant and the Andhra Bank, now Union Bank of India is referred as the non-Applicant No. 2. IA-2085/ND/2020 has been filed by Bharat Aluminium Co. Ltd. The prayer made in I.A. No. 2085/ND/2020 filed by the applicant is reproduced below: "a) Declare that the invocation/encashment of Bank Guarantee No. 016219IGPER0021 dated 22.04.2019 is not covered by Moratorium under Section 14 of the Code. b) Consequently, direct the Respondent Bank to encash the Bank Guarantee No. 016219IGPER0021 dated 22.04.2019 and, c) Pass any other order as this Hon'bl....
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....ee dated 22.04.2019, bearing No. 0162191GPER0021 amounting to Rs. 1,60,00,000 executed by Andhra Bank (Andhra Bank is now merged with Union Bank of India.) 7. It is stated by the applicant that non-applicant No. 2 extended the validity of the aforesaid BG from 21.10.2019 up to 21.04.2020 vide its Letter dated 21.10.2019. It is added that all the terms and conditions of the BG continued to remain in force and unchanged. Moreover, vide clause III of the amended BG, the Respondent Bank reconfirmed their liability to pay the guaranteed amount forthwith once a written Claim/demand was served upon. 8. It is further stated that the Corporate Debtor defaulted in making payments. Therefore, applicant was constrained to invoke the BG vide its lette....
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....interest or a claim to property, created in favour of, or provided for a secured creditor by a transaction which secures payment or performance of an obligation and includes mortgage, charge, hypothecation, assignment and encumbrance or any other agreement or arrangement securing payment or performance of any obligation of any person: Provided that security interest shall not include a performance guarantee;" 13. On the other hand, the non-applicant No. 2 and the IRP has opposed the application filed by applicant. It is submitted by the non-applicant No. 2 that the application filed by the applicant is not maintainable as it has sought relief only against the non-applicant No. 2 which is neither a Corporate Debtor or a Corporate Person. ....
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....8, JND FLOOR ASAF AU ROAD, DELHI-110002, hereinafter for the sake of brevity referred to as "the BUYER" (which expression shall include all its successors-in-interest and executors as the case may be) have agreed for the sale and Purchase of Aluminium in accordance with the arrangement mutually agreed between the Parties. The Seller is agreeable to accept Bank Guarantee for Rs. 1,60,00,000.00 (Rupees One Crore Sixty Lakh only) towards the security for the material supplied to the said Buyer and at the request of the Buyer we "The Andhra Bank" "The Bank" have agreed to issue guarantee in favour of the Seller." (Emphasis is supplied) 16. The above mention recital of guarantee clearly provides that the guarantee in question is a bank guarante....
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....rring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. (2) The supply of essential goods or services to the corporate debtor as may be specified shall not be terminated or suspended or interrupted during moratorium period. (3) The provisions of sub-section (1....
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....T, Ahmedabad Bench passed in the matter of Nitin Hasmukhlal Parikh (Diamond Power Transformers Ltd.) v. Madhya Gujarat Vij Company Ltd. & Others, wherein under Para No, 10 of the order Adjudicating Authority has observed as follows; - "The moratorium order passed by this Tribunal applies in respect of Bank Guarantees other than Performance Guarantees furnished by the Corporate Debtor in respect of its property since it comes within the meaning of 'security interest'. Therefore, Respondent No. 1 is not entitled to invoke Bank Guarantees other than that comes within the meaning of performance Guarantees, during Moratorium period. " 20. We are conscious of the fact that NCLT, PB New Delhi in the case of M/s. Levcon Valves (P) Ltd, v....