TaxTMI 
TaxTMI 
2019 (10) TMI 1434
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....d on 5th August, 2004. The Company Identification No. U67190TG2004PTC058625. The Registered Office of the Corporate Debtor is situated at Door No. 1-7-293, Mahatma Gandhi Road, Secunderabad - 500 003, Telangana, India. 3. The Petitioner suggested the name of proposed Interim Resolution Professional ("IRP). The particulars of Proposed IRP, by name, Sri TVL Narasimha Rao, residing in Flat No. GI, G2 & 202, Mani Plaza, H.No. 6- 2-101/7/A&B, New Bhoiguda, Secunderabad-500 003, Telangana State. 4. The case of Applicant / Petitioner is that the total amount of debt said to have been due by Corporate Debtor who is guarantor is Rs. 7,88,15,181/- (Seven Crores Eighty Eight Lakhs Fifteen Thousand One Hundred and Eighty one only) which includes interest @ 24% per annum on principal of Rs. 4,00,00,000/- (Four Crores only) as on 21.08.2017. The default is said to have been occurred on 23.01.2017. The case of Petitioner / Financial Creditor is that the Financial Creditor and one M/S. Amrit Jal Ventures Private Limited entered into an Inter Corporate Deposit (ICD) Agreement on 30.06.2011 wherein M/S. Amrit Jal Ventures Private Limited hereinafter called as Principal Borrower availed the loa....
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.....07.2017 given by M/S. AmritJa1 Ventures Private Limited and its Guarantor, the Respondent herein. As such the Petitioner approached this Hon'ble Tribunal concealing the material facts and with u clean hands and as such this company petition is liable to be dismissed on this ground alone. The replies addressed by M/S. Amrit Jal Ventures Private Limited and Respondent to the Petitioner are filed herewith as Annexure-I, Annexure-2 and Annexure-3. (b) Existence of Arbitration clause and the dispute to be referred to Arbitration: The Arbitration notice is issued by M/S. Amrit Jal Ventures Private Limited on 15.09.2017 to the Petitioner and the said notice clearly shows that there are pending disputes and issues between the Petitioner and M/S. Amrit Jal Ventures Private Limited. Arbitration clause exists in Agreements dated 13.12.2013 and 30.06.2011 executed between the Petitioner, M/S. Amrit Jal Ventures Private Limited and the Respondent. As such, all the disputes and issues are to be referred to Arbitration. M/ s. Amrit Jal Ventures Private Limited has nominated three Arbitrators for adjudication of the disputes between the parties. The replies to the Petitioner....
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.... they must initiate arbitration proceedings as provided for under the said agreement. The Hon ble Apex Court in the case of IBA Health (I) Pvt. Ltd. Vs. Info-Drive Systems Sdn. Bhd. (2010) 10 SCC 553 stated that: "A Company Court, therefore, should act with circumspection, care and caution and examine as to whether an attempt is made to pressurize the company to pay a debt which is substantially disputed. A Company Court, therefore, should be guarded from such vexatious abuse of the process and cannot function as a debt collecting agency and should not permit a party to unreasonably set the law in motion, especially when the aggrieved party has a remedy elsewhere. " 8. The Corporate Debtor filed Additional Counter along with documents shown as Annexures-5 to Annexure-7. The averments in the additional counter in brief are as follows: 1. That the main Petition under section 7 of the IBC Code is not maintainable against Respondent herein since Respondent cannot be treated as a 'Corporate Person' in terms of the definition under section 3(7) "corporate person" means a company as defined in clause (20) of section 2 of the Companies Act, 2013, a limite....
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....tter dated 08-03-2014 from RBI filed as Annexure-7. Hence it is clear from the Memorandum of Association of the Respondent as well as the letters from Reserve Bank of India that the Respondent is treated by RBI as a Non-Banking Financial Company (NBFC). 4. The Hon'ble National Company Law Appellate Tribunal in its decision in the case of Randhiraj Thakar Vs M/S Jindal Saxena Financial Services in Company Appeal (AT) (Insolvency) No. 32 and 50 of 2018 by its order dated 18-09-2018 and in the case of Housing Development Finance Corporation Ltd., Vs RHC Holding Private Ltd., in Company Appeal (AT) (Insolvency) No. 26 of 2019 by its order dated 10-07- 2019, held that the definition of the "Financial Services' as defined in Section 3(16) of I & B Code is not limited to the 9 activities as shown in clause (a) to (i) of section 3(16). The aforesaid clauses (a) to (I) are inclusive which means there are other services which come within the meaning of 'financial services'. The Hon 'ble National Company Law Appellate Tribunal further held that NBFC's regulated by RBI would be within the scope of "Financial Service Provider" and are outside scope of I....
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.... proceed against either borrower or surety or against both as liability is joint. The Counsel contended that proceedings against Principal Borrower does not bar the Financial Creditor to proceed against the Corporate Debtor. In this connection the Learned Counsel for Financial Creditor has relied on Section 128 of the Indian Contract Act, 1872, which is as follows:- Section 128-Sure s liabili The liability of the surety is co-extensive with that of the Principal Debtor, unless itis otherwise provided by the contract. Illustration: A guarantees to B the payment of Bill of exchange by C, the acceptor. The bill is dishonoured by C. A is liable not only for the amount of the Bill but also for any interest and charges which may have become due on it. Thus, the Learned Counsel contended that the Financial Creditor can maintain the present petition. 11. On the other hand, the Learned Counsel for Corporate Debtor would contend that the Financial Creditor cannot maintain the present petition against the Corporate Debtor. The Corporate Debtor is only a Guarantor. Already Financial Creditor initiated action against Principal Borrower by filing petition u....
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....arate petition against the guarantor for the same financial debt which was stated to have been committed default by the Principal Borrower. The Financial Creditor can proceed against the guarantor. There is no restriction on the right of Financial Creditor to proceed against guarantor provided if financial creditor had not initiated any action against the Principal Borrower. Here, the Corporate Debtor is raising objection against filing of the Petition on the ground that Financial Creditor already triggered CIRP against the Principal Borrower Company. Therefore, the Financial Creditor is not entitled to file again an Application for the same financial debt on the ground of default against the Guarantor. In this connection, the Learned Counsel for Corporate Debtor relied on the order dated 07.05.2019 passed by this Tribunal in CP (1B) No. 192/7/HDB/2017 where under CIRP started against the Principal Borrower/ M/S Amrit Jal Ventures Private Limited. Thus, the Corporate Debtor is able to prove that financial creditor already initiated proceedings against the Principal Borrower and Petition filed under Section 7 of IBC was admitted. It is but natural the Financial Creditor should have ....
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....ear from the decision that when once the same set of claim application under Section 7 of IBC filed by Financial Creditor is admitted whether against the Principal Borrower or Corporate Guarantor, second application by the same Financial Creditors for the same set of claims and default cannot be admitted against Corporate Debtor / Corporate Guarantor. Thus, it is very clear that when once the petition filed by Financial Creditor for the same set of claims was admitted against Principal Borrower, then Financial Creditor cannot file second application for the same set of claim against the guarantor. So, the present Petition is therefore not maintainable against the Corporate Debtor for the same set of claim for which already financial creditor filed petition against Principal Borrower and got admitted the petition. 17. In this connection the Learned Counsel for Corporate Debtor also relied on the decision of Principal Bench, NCLT, New Delhi in cp No. IB.1322(PB)/2018 in the matter of International Finance Corporation Vs Punj Llyod Upstream Limited. This decision is also on the same point. Hon'ble Principal Bench has relied on the decision of Hon'ble NCLAT in the matter of ....