2020 (2) TMI 1562

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....olution Process against the Corporate Debtor - 'M/s. ACCIL Hospitality Ltd.' on the ground that the Corporate Debtor was the Corporate Guarantor for the Principal Borrower -'Asian Colour Coated Ispat Limited', who had defaulted in clearing its outstanding liability of loan facility of Rs. 150 Crores extended to it by the Financial Creditor. The Adjudicating Authority (National Company Law Tribunal), Principal Bench, New Delhi, vide its judgment dated 21st October, 2019 dismissed the application on the ground that since claim lodged by the Financial Creditor before Mr. Kuldeep Kumar Bassi, Resolution Professional in CIRP against the Principal Borrower - 'Asian Colour Coated Ispat Limited' has already been collated and....

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.... without the consent of Surety, discharges the surety qua the transactions subsequent to such variance. This is specifically provided under Section 133 of the Indian Contract Act. 4. Adverting to the factual matrix of the case in hand be it seen that the Corporate Loan Agreement was executed inter-se 'Asian Colour Coated Ispat Limited' (Principal Borrower) with the Appellant - 'IFCI Ltd.' (Financial Creditor) for grant of loan facility to the tune of Rs. 150 Crores with Respondent - M/s. ACCIL Hospitality Ltd. (Corporate Debtor) executing deed of Corporate Guarantee guaranteeing the repayment of loan. That apart, personal guarantees were executed by Shri Pradeep Agarwal and Shri Vikas Agarwal, Promoters/Directors of the C....

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....llant) submitted its claim for a sum of Rs. 227,48,91,019.15 on 20.07.2018 before the IRP, who admitted the full amount of claim. Admittedly, a Resolution Plan approved by 79.3% of voting share of the Committee of Creditors is pending approval before the Adjudicating Authority. It is at this stage, that the Financial Creditor sought triggering of CIRP against the Guarantor (Corporate Debtor herein) which has been declined by the Adjudicating Authority. 6. Learned Adjudicating Authority, while declining initiation of CIRP against Guarantor at the instance of Financial Creditor when its claim has been admitted in CIRP Process initiated against the Principal Borrower, observed that in terms of the dictum of this Appellate Tribunal in 'D....

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....ion of law holds the field as of now. Once the Financial Creditor's claim has been collated and admitted by the IRP in its entirety, invoking of jurisdiction of the Adjudicating Authority at its instance for triggering a fresh Corporate Insolvency Resolution Process against the Corporate Guarantor would amount to duplicity of claims being pressed. The fact that the Resolution Plan is yet to be approved by the Adjudicating Authority and the Financial Creditor may be faced with the prospect of taking a haircut is no ground to trigger a fresh resolution process against the Corporate Guarantor. Assuming but not holding that the Corporate Guarantors liability is coextensive with that of the Principal Borrower in the instant case with no proo....