TaxTMI 
TaxTMI 
2022 (10) TMI 586
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....as 'The Code') against the Impugned Order dated 02.03.2021 passed by Learned Adjudicating Authority (National Company Law Tribunal, Mumbai Bench, Court-I) in IA1960/2019, in C.P. (IB) No. 1385/MB/2017, by which Order, the Adjudicating Authority has partly allowed the IA filed by 'M/s. Doha Bank QPSC'/the first Respondent seeking to delete the Appellant and Respondents 3 to 7 as 'Financial Creditors' of Reliance Infratel Limited ('RITL'), hereinafter referred to as the 'Corporate Debtor'. 2. Facts in brief, are that vide Order dated 15.05.2018, CIRP was initiated against the 'Corporate Debtor' and Mr. Manish Dhirajlal Kaneria was appointed as the IRP on 18.05.2018. Subsequent to the withdrawal of the Appeals before this Tribunal, a fresh Public Announcement was issued on 07.05.2019, inviting claims and the CoC was constituted on 24.05.2019, with the following 'Financial Creditors' as Members: Sr. No. Name of Creditors Amount Claimed Amount Admitted (Provisional) Amount under Verification Voting share 1. State Bank of India 3628.68 3516.37 112.31 36% 2. Bank of India 1064.82 979.17 85.65 10% 3. UCO Bank 952.81 952.8....
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....nk vide letters dated 28.02.2019 and 08.03.2019, objected to the invocation of Guarantees and intimated the Consortium of Lenders through the Security Trustee that the Corporate Guarantees were created in breach of the terms of the Facility Agreement dated 19.03.2010 and despite repeated requests neither the Appellant, Respondents 3 to 7 nor the 'Corporate Debtor' provided copies of the said Guarantees to M/s. Doha Bank. 5. M/s. Doha Bank preferred I.A. 1960/2019 under Section 60(5) of the Code, seeking a direction to the RP to reconstitute the CoC by deleting the Appellant and Respondents 3 to 7 who were claiming to be the 'Financial Creditors' of the 'Corporate Debtor' on the basis of the Guarantees. 6. Submissions of the Learned Sr. Counsel appearing on behalf of the Appellant:- * It is submitted that as per the Code, a Creditor is entitled to make its claim against the 'Corporate Debtor', only on the basis of Guarantee extended by such 'Corporate Debtor'. Hence, SBI Consortium is entitled to make its claim against the 'Corporate Debtor' (RITL) on the basis of the Corporate Guarantees issued by RITL and which has already been invoked by SBI Consortium. Even though....
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....te submissions regarding the non-stamping of the Corporate Guarantees, Respondent 1 failed to produce the signed and the executed version of the Doha Bank Facility which is the basis of its entire claim against the RITL. * Section 186 of the Companies Act, 2013 (hereinafter referred to as 'The Act'), carves out an exception for Companies providing 'Infrastructure Facilities'. In Schedule VI to the Act 'Infrastructure Facilities' is defined to include Companies engaged in telecommunications projects and activities, which are exempted from the provisions of Section 186 of the Act. As RITL is a Telecommunication Service provider, it is not bound by the provisions of Section 186 of the Act and therefore the Corporate Guarantees provided by RITL or not in violation of this Section. Further RITL has provided a Certificate dated 26.04.2017 to SBI and confirmed that RITL is in compliance of Sections 185 and 186 of the Act. * It is submitted that the Adjudicating Authority has failed to recognise that the SBI Consortium have in their favour, a 'Deed of Hypothecation'. Keeping in view the Order passed in IA3055/2019 and that the 'Deed of Hypothecation' is similar to the one....
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.... R1 under the terms of the Facility Agreement. No waiver was sought from the first Respondent prior to the issuance of the purported Guarantees as per the terms of the Facility Agreement. Clauses 20.2 read with Clause 19.2.6 read with a definition of 'Financial Indebtedness' as defined in the Facility Agreement, creates a bar on the 'Corporate Debtor' to issue any such purported Guarantees, which are in contravention with Section 186(2) read with Section 186(3) of the Act. * By creating these Guarantees, the 'Corporate Debtor' has sought to create a preference in favour of the Pre-Existing Lenders of his holding/parent Companies, eclipsing the bona fide rights and interest of the direct Lenders of the 'Corporate Debtor'. * At the time of creation of these purported Guarantees, the 'Corporate Debtor' was itself in default to repay the outstanding loans to Doha Bank under the terms of the Facility Agreement entered into between the Doha Bank and the 'Corporate Debtor'. It is strenuously contended by the Learned Sr. Counsel that these Guarantees were created when the 'Corporate Debtor' was under severe financial losses. Accounts of RCOM, RTL and 'Corporate Debtor' we....
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....documentary evidence on record in support of the Appellant that indeed there was disclosure regarding these Guarantees by the beneficiary Lenders of the 'related party' of the 'Corporate Debtor' during Restructuring Plan of the debt of the 'Corporate Debtor'. Though these Guarantees have been filed here at appellate stage, the fact remains, that these Guarantees were not reflected in the Financial Statements of the 'Corporate Debtor' for the FY 2016-17 & 2017-18 or produced before the Adjudicating Authority. 9. The second Respondent/RP Mr. Anish Nanavaty filed Reply Affidavit stating that the admission of the claims of the Appellant and the other banks recognising them as Members of the CoC was undertaken by Mr. Manish Dhirajlal Kaneria, the erstwhile IRP; that the issue regarding the existence and submission of the two Corporate Guarantees before the Adjudicating Authority has now become redundant as the same has been produced before this Tribunal. Apart from this brief Reply, there is no pleading on record to establish that the Guarantees were verified at New Delhi by the IRP/RP. 10. The contention of the Learned Sr. Counsel for the Appellant that 20.12.2017 has to be taken....
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....or' of the 'Corporate Debtor', has set aside the finding of the Adjudicating Authority and remanded the matter with a direction to take all consequential actions, resulting from derecognising the relevant parties as 'Financial Creditors' on the ground that the 'Deed of Hypothecation' cannot be a basis to declare the parties as 'Financial Creditors' as the Respondents were not even party to the 'Deed of Hypothecation'. Therefore, the contention of the Learned Sr. Counsel for the Appellant that having regard to the Order passed by the Adjudicating Authority in IA3055/2019, the SBI Consortium ought to have been permitted to continue to be recognised as 'Financial Creditors' of RITL cannot be sustained, keeping in view the observations made by this Tribunal in 'Doha Bank & Ors.' (Supra) which Appeal challenged the Impugned Order in IA3055/2019. 15. Keeping in view the foregoing reasons we do not find any of the Judgements relied upon by the Appellant, applicable to the facts of the attendant case. It is relevant to mention that an Application under Section 30(6) of the Code was preferred by the Resolution Professional seeking approval of the Resolution Plan, in IA920/2020, whi....