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2022 (6) TMI 1317
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.... authorised representative Mr. Shekhar Gandhi, Mr. Nikhil Gandhi and Mr. Bhavesh Gandhi ('Applicants') respectively seeking following similar relief: a) This Hon'ble Tribunal be pleased to quash and set aside the said impugned email dated 28th January, 2021 issued by the Respondent to the Applicant rejecting the Applicant's claim of financial debt' under Regulation 8 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution process for Corporate Persons) Regulations, 2016 in the corporate insolvency resolution process of the Corporate Debtor; b) This Hon'ble Tribunal be pleased to allow and admit the Applicant's claim of 'Financial Debt' as submitted by the Applicant under Regulation 8 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution process for Corporate Persons) Regulations, 2016 in the corporate insolvency resolution process of the Corporate Debtor; c) That in pursuance of (b) above, this Hon'ble Tribunal be pleased to order and direct the Respondent to reconstitute the Committee of Creditors of the Corporate Debtor and grant the Applicant ....
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....n on the operations of the Corporate Debtor, the consortium lenders were in discussion for implementation of Corporate Debt Restructuring Scheme. Also, during Jan-Feb, 2015 the Skill Group were exploring the option of introducing another group of promoters to take-over the management and ownership of the Corporate Debtor. Thereby Reliance Infrastructure Ltd. & Reliance Defense Systems Pvt. Ltd. (Anil Ambani's Reliance Group) approached and expressed interest to take over the Corporate Debtor. Following that, the Skill Group had executed purchase agreement dated 04.03.2015 under which Reliance Infrastructure Ltd. & Reliance Defense Systems Pvt. Ltd. had agreed to acquire control and management of the Corporate Debtor and its subsidiaries. Copy of purchase agreement is annexed and placed on record. As per clause 5.10 of the purchase agreement, the Reliance Group was obligated to ensure the release of the securities furnished by the SKILL Group to the lenders within three months and had also agreed to indemnify SKILL Group against any loss suffered as a result of invocation of securities by the lenders. The Reliance Group vide letter dated 07.03.2015 to the c....
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....securities furnished by the SKIL Group and apprehending that lender would invoke the securities furnished by SKIL Group, the SKIL Group filed Commercial Suit No. 35/2018 against the new management before the Commercial Court at Ahmedabad. Consequent to filing of Commercial Suit, the Vistra ITCL (India) Limited ("Vistra"), the Security Trustee appointed by the Lenders of the Corporate Debtor, vide letters dated 17th March 2018 addressed to the Applicants invoked the Corporate and Personal Guarantees and called upon them to make payment of an aggregate amount of Rs. 9147.88 crores as on 28th February, 2018. As on date, Vistra has invoked a total of 13,87,54,995 shares of the Corporate Debtor held by the SKIL Group valued at approximately Rs. 417,65,25,349/-. Out of 13,87,54,995 shares of the Corporate Debtor invoked by Vistra, 11,64,05,500 shares valued at Rs. 350,38,05,550/- were owned by the Applicant in IA No. 257/2021. Accordingly, SKIL Infrastructure Ltd. Applicant in IA No. 257/2021 raised a Debit Note dated 31st March, 2018 upon the Corporate Debtor for an amount of Rs. 350,38,05,550/-. The Housing and Urban Development Corporation L....
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....olution Professional vide email dated 28.01.2021 rejected the claim of the Applicants for the following reasons: a) As per clause 4.2 of the Deed of Guarantee dated 31 March 2015, the Applicant had agreed that the Applicant shall neither be discharged nor shall its liability be affected by any act or thing or means whatsoever by which the Applicant's liability would have been discharged or affected if the Applicant had not been principal debtor; b) Further as per Clause 13 of the Deed of Guarantee, the said guarantee shall remain in force and effect until the discharge in full of the outstanding. c) Since (i) the Applicant's liability under the Deed of Guarantee is of principal debtor; (ii) the Deed of Guarantee being co-extensive and co terminus; (iii) Applicant not being entitled to the benefit of subrogation vis a vis securities or otherwise until all the monies due to the Finance Parties under the Restructured Facilities are fully repaid/paid in accordance with Clause 3.6 of the Deed of Guarantee; and (iv) in the absence of any financ....
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....claim filed by the Applicants. In reply to the said emails the Applicants reiterated the contents of this Application. Thus, vide email dated 28th January 2021, the claims filed by the Applicants were rejected. ii) The Applicants in IA No. 423/2021 & IA No. 427/2021, in their letters dated 27th May 2020 had acknowledged that no payment has been made with respect to the guarantee given for the borrowings of the Corporate Debtor. iii) As per Clause 4.2 of the Deed of Guarantee/Personal Guarantee, the Applicants had agreed that the Applicants shall neither be discharged nor shall the Applicant's liability be affected by any act or thing or means whatsoever by which the Applicant's said liability would have been discharged or affected if the Applicant had not been principal debtor. Also, as per Clause 13 of the Deed of Guarantee/Personal Guarantee, the said guarantee shall remain in force and effect until the discharge in full of the outstanding. iv) The Applicants have till date not produced anything on the record to prove that they had made any payment under the terms of the Corporate Guarantee. ....
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....navati advocate appeared for the applicants. However, at the time of final hearing of the Applications, none appeared for the Applicants. However, after hearing the counsel, Mr. Navin Pahwa, senior advocate for the Respondent Resolution Professional, liberty was granted to the parties to file written submissions. 7. The Applicants filed their respective written submissions with following similar contentions: i) Section 125 of the Indian Contract Act, 1872 ('Indian Contract Act') is a statutory mandate, entitling the promisee to recover from the promisor all damages which he may be compelled to pay in any suit in respect of any matter to which the promise to indemnify applies. Once proceedings under the IBC have commenced no suit shall lie or is required to be filed against the Guarantor. Hence proceedings, which have been initiated by the lenders against the Applicants in their capacity as Guarantors, have to be treated as a Suit contemplated under Section 125 (1) of the Indian Contract Act. It therefore follows that, the right of the promisee/Guarantor against the promisor/Corporate Debtor has duly crystallised and that all damages which the Guaran....
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....ee given by it to the Appellant-'Andhra Bank', we hold that Andhra Bank come within the definition of 'Financial Creditor' as defined under Sections 5(7) r/w (8) of 'I&B Code'. The 'Resolution Professional' and the Adjudicating Authority both having failed to consider the aforesaid provisions of law, we set aside the impugned order dated 17th November 2017." 8. The Respondent has also filed its written submission and reiterated the contentions made in the reply. 9. On considering the submissions and after perusal of the documents placed on record, the question to be decided is: Whether the Applicants qualify as a financial creditor in terms of provisions of the Code of the Corporate Debtor? 10. The Applicants being the founder promoters of the Corporate Debtor had provided corporate/personal guarantee vide Deed of Guarantee dated 30.03.2015 and Deed of Personal Guarantee dated 31.03.2015, executed with IL&FS Trust Company Ltd. being the security trustee of CDR lenders. It is inferred from the Share Pledge Agreement dated 20.04.2015 that the Skill Infrastructure Ltd. Applicant in IA 257/2021 had already pledged 12,16,50,....
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....tructure (including Sale of Identified Sale Share, excluding Top Up Sale Shares, without Public Offer Shares) Name of Shareholder Number of Equity Shares Percentage of Holding SKIL Infrastructure Limited 18,11,00,828 24.60% SKIL Shipyard Holding Pvt. Limited Grevek Investments Finance Private Limited Reliance Defence Services Private Limited 13,00,00,000 17.66% Public 425,105,441 57.74 % Total 73,62,06,269 100.00% 12. Further clause 5.10 of the purchase agreement dated 04.03.2015 shows that Reliance Defence System Pvt. Ltd. i.e. acquirer under the purchase agreement and the Company i.e. the Corporate Debtor agreed to release guarantees and also agreed to indemnify for any loss suffered by the founder promoters on account of enforcement of guarantees. The relevant part of clause 5.10 is reproduced below: "The Acquirer shall make best endeavours to release such guarantees, undertakings and/or security of the Founder Promoters to the extent Disclosed to the Acquirer (the "Disclosed Founder Promoter Guarantees") as soon as reasonably practicable and not later than 3 (three) months from the Completion Date. In t....
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.... credit facility or its dematerialised equivalent; (c) any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument; (d) the amount of any liability in respect of any lease or hire purchase contract which is deemed as a finance or capital lease under the Indian Accounting Standards or such other accounting standards as may be prescribed; (e) receivables sold or discounted other than any receivables sold on non-recourse basis; (f) any amount raised under any other transaction, including any forward sale or purchase agreement, having the commercial effect of a borrowing; Explanation. -For the purposes of this sub-clause,- (i) any amount raised from an allottee under a real estate project shall be deemed to be an amount having the commercial effect of a borrowing; and &nbs....