AI OCR 
TaxTMI 
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TaxTMI 
2025 (9) TMI 1344
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.... "CIRP") on 03.08.2018. The appellant had filed its claim as a Financial Creditor with the Resolution Professional of KPPL. 2.1 It is submitted that the appellant had provided financial assistance to KPPL by way of subscription to Compulsorily Convertible Debentures (CCDs) of Rs. 50 crores. The loan was disbursed in two instalments of Rs. 25 crores each on 10.01.2012 and another on 21.05.2013. The said financial assistance was secured by a corporate guarantee issued by KSPL in favour of the appellant vide irrevocable deed of corporate guarantee dated 16.12.2011. The deed intera alia stipulated that the labiality of the guarantor KSPL shall not be affected by winding up of the borrower, i.e. KPPL. The corporate guarantor KSPL also entered into a deed of hypothecation dated 22.02.2016 in favour of the appellant and hypothecated/pledged its immovable assets in favour of the appellant. 2.2 It is submitted that due to failure on the part of the main borrower KPPL to repay the loan, KPPL was classified as a Non-Performing Asset ("NPA") on 30.06.2017. 2.3 It is submitted that the appellant had filed its claim as a financial creditor in the CIRP of KPPL and the claim was admitted ....
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....ot per se operate as a discharge of the guarantor's liability. As to the nature and extent of the liability, much would depend on the terms of the guarantee itself. However, this Court has indicated, time and again, that an involuntary act of the principal debtor leading to loss of security, would not absolve a guarantor of its liability. In Maharashtra SEB30 the liability of the guarantor (in a case where liability of the principal debtor was discharged under the Insolvency law or the Company law), was considered. a It was held that in view of the unequivocal guarantee, such liability of the guarantor continues and the creditor can realise the same from the guarantor in view of the language of Section 128 of the Contract Act, 1872 as there is no discharge under Section 134 of that Act. This Court observed as follows: (SCC pp. 362-63, para 7) "7. Under the bank guarantee in question the Bank has undertaken to pay the Electricity Board any sum up to Rs. 50,000 and in order to realise it all that the Electricity Board has to do is to make a demand. Within forty-eight hours of such demand the Bank has to pay the amount to the Electricity Board which is not under ....
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....gain wrote to the Resolution Professional to admit its claim. Thereafter, on 25.07.2023, IA(IB)/1372(KB)/2023 was filed under Section 60(5) of the Insolvency and Bankruptcy Code, 2016 by the appellant before the Ld. Adjudicating Authority. Through the impugned order dated 03.04.2024, the Ld. Adjudicating Authority dismissed the said IA with following observations: "9. We have considered the rival contentions, perused the records. 10. We would note that probably Liquidator of Kohinoor Power Private Limited have already admitted the same claim of the Applicant in the aforementioned case. Further, we would note that revised plans have been submitted on 26.05.2023, voting lines was open for approval of the Resolution Plan till 30.01.2024 and therefore, at this advanced stage of CIRP the claim of the Applicant cannot be entertained. The CIRP being a time bound process. 11. We would also note the decisions in Company Appeal 1340 of 2022 in the matter of Deputy Commissioner, UTGST, Daman Vs. Rajeev Dhingra, Hon'ble NCLAT has noted the following decisions: i. In Harish Polymer Product Vs. George Samuel & Anr. In CA (AT) (Ins.) No. 420 of 2021, it has....
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....nsolvency commencement date. It is submitted that prior to this amendment, Regulation 12(2) provided that "A creditor, who failed to submit proof of claim within the time stipulated in the public announcement, may submit such proof to the interim resolution professional or the resolution professional, as the case may be, till the approval of a resolution plan by the committee." 5. It is submitted that keeping in mind the time-bound process of CIRP under the Code, the claim is required to be filed within 90 days of insolvency commencement date. The appellant had initially lodged its claim on 11.12.2019, which was after the last date for submission of claims as per the public announcement, though it was filed within 90 days period specified in Regulation 12. It was submitted that after rejection of its claim by the Resolution Professional on 18.02.2020, the appellant did not file any appeal before the Ld. Adjudicating Authority regarding the said rejection. It was only on 27.07.2023 when the said IA was filed before the Ld. Adjudicating Authority, it was rejected by the Ld. Adjudicating Authority as per by law of limitation. 6. It was submitted that considering the time bound C....
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....d stage after three years it cannot be entertained as it would affect the timely conclusion of the CIRP. 10. The Hon'ble Supreme Court in the case of Greater NOIDA Industrial Development Authority v. Prabhjit Singh Soni & Anr. reported in (2024) 6 SCC 767 has held as under: "The resolution plan did not meet the requirements of Section 30(2) IBC read with Regulations 37 and 38 of the CIRP Regulations, 2016. 54. In our view the resolution plan did not meet the requirements of Section 30(2) IBC read with Regulations 37 and 38 of the CIRP Regulations, 2016 for the following reasons: 54.1. The resolution plan disclosed that the appellant did not submit its claim, when the unrebutted case of the appellant had been that it had submitted its claim with proof on 30-1-2020 for a sum of Rs. 43,40,31,951. No doubt, the record indicates that the appellant was advised to submit its claim in Form B (meant for operational creditor) in place of Form C (meant of financial creditor). But, assuming the appellant did not heed the advice, once the claim was submitted with proof, it could not have been overlooked merely because it was in a different form. As already discusse....
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....same. In the instant case, the plan conceived utilisation of land owned by the appellant. Ordinarily, feasibility and viability of a plan are economic decisions best left to the commercial wisdom of the CoC. However, where the plan envisages use of land not owned by the CD but by a third party, such as the appellant, which is a statutory body, bound by its own rules and regulations having statutory flavour, there has to be a closer examination of the plan's feasibility. Here, on the part of the CD there were defaults in payment of instalments which, allegedly, resulted in raising of demand and issuance of pre-cancellation notice. In these circumstances, whether the resolution plan envisages necessary approvals of the statutory authority is an important aspect on which feasibility of the plan depends. Unfortunately, the order of approval does not envisage such approvals. But neither NCLT nor NCLAT dealt with those aspects. Relief 55. As we have found that neither NCLT nor NCLAT while deciding the application/appeal of the appellant took note of the fact that: (a) the appellant had not been served notice of the meeting of the CoC; (b) ....