2025 (9) TMI 819

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....nghrajka has been appointed as IRP. Aggrieved by which order, this Appeal has been filed. 2. Brief facts of the case necessary to be noticed for deciding the Appeal are: (i) On 26.12.2017, Piramal Capital and Housing Finance Ltd. ("PCHFL") entered into a Loan Agreement with Gstaad Hotels ("Gstaad Hotels") Private Limited and Neo Capricorn Plaza Private Limited ("Neo Capricorn") as Borrowers. On 26.12.2017 a Security Trustee Agreement was entered between Gstaad Hotels, Neo Capricorn, PCHFL and the Financial Creditor (IDBI Trusteeship). On 26.12.2017 a Deed of Guarantee ("Corporate Guarantee") was executed by the CD - Advantage Raheja Hotels Pvt. Ltd. in favour of Financial Creditor, guaranteeing the repayment of the loan. There have been further facilities extended to the Borrowers under ECLGS-1 and ECLGS-2 Facility. (ii) By Deed of Assignment on 27.12.2022, all rights of Lenders were assigned to M/s Omkara Assets Reconstruction Private Limited ("Omkara"). (iii) On default being committed by Gstaad Hotels and Neo Capricorn, Omkara issued a legal notice dated 15.02.2023 and initiated proceedings under Section 7 by filing CP(IB) Nos.290 and 291 of 2023 ag....

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....so, the service can be effected. The Appellant is also required to furnish the Mobile No. of the Respondents to the 'Office of the Registry'. 3. Let reply be filed within three weeks. 4. List the Appeal on 17.03.2025. In the meantime, no Form G shall be issued. CIRP process may go on." 4. Reply has been filed in this Appeal, to which rejoinder affidavit has also been filed. 5. During hearing of this Appeal, learned Counsel for the Respondent submitted that Section 7 application, which remanded back to the Adjudicating Authority for fresh consideration by this Tribunal by order dated 08.01.2025, were considered and admitted by the Adjudicating Authority vide order dated 08.07.2025. Challenging the said order, Company Appeal (AT) (Ins.) Nos.1039 and 1040 of 2025 were filed in this Tribunal, which have now been dismissed by this Tribunal vide its order dated 19.08.2025. The CIRP against Principal Borrower having been admitted, which has also been confirmed by this Tribunal, no error can be found against the admission of CIRP against the Corporate Guarantor by the Adjudicating Authority vide order dated 17.12.2024. It is submitted by learned Counsel for....

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....ion Private Limited vide email dated 15.03.2023 which is annexed as Exhibit (B) to the affidavit in rejoinder filed by the Petitioner. It, therefore, cannot be argued with conviction that the present Petition has been filed by the Security Trustee without any authorisation from the lender. Even otherwise, it cannot be said by any stretch of imagination that merely on account of the assignment of loan by the original lender in favour of Omkara Assets Reconstruction Private Limited, the Security Trustee Agreement would come to an end. Rather with the assignment of the loan, Omkara Assets Reconstruction Private Limited stood replaced in place of the original lender whereas the Financial Creditor continued to act as Security Trustee. No evidence has been brought on record by the Corporate Debtor to support the contentions that the Security Trustee Agreement came to an end with the assignment of the loan in favour of Omkara Assets Reconstruction Private Limited. Even otherwise through the very deed of guarantee that was executed between the Corporate Debtor and the Financial Creditor i.e. IDBI Trusteeship Services Limited, the latter was appointed as Security Trustee. Having voluntarily....

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.... instructions to the IDBI Trusteeship. In paragraphs 25 and 26 of the reply, following have been pleaded: "25. In furtherance of the rights and obligations under the Security Trustee Agreement, the Financial Creditor received written instructions from Omkara, the assignee of the Loan, on 15.03.2023, directing the Financial Creditor to issue notices invoking the Corporate Guarantee. The said written communication also contained the draft of the Invocation Notice, which was thereafter issued by the Financial Creditor to the Corporate Debtor in its capacity as Security Trustee. The relevant extract of the same is reproduced herein below: "Dear Jinal, With reference to the captioned account, requesting you to please issue the attached Recall and Personal Guarantee Invocation Notice at the earliest." 26. Further, vide email dated 23.03.2023, the original lender PCHFL also informed the Financial Creditor that Omkara intended to initiate insolvency proceedings against the Corporate Debtor through the Financial Creditor, thereby expressly authorising and directing the Financial Creditor to act on its behalf. The relevant extract of the same is reproduced....