NCLAT (15.10.2020) in Ascot Realty Private Limited vs. Ajay Kumar Agarwal, IRP [Company Appeal (AT) (Insolvency) No. 658 of 2020] held that;
# 29. The third party was advanced debt which was admittedly given by the Financial Creditor to the said third party. Even if Corporate Debtor issued guarantee in recovery proceeding for the financial debt of third party and in default the said guarantee/s have been invoked by the Financial Creditor, the Corporate Debtor is liable to pay the amount being amount of liability in respect of guarantee issued which falls in the definition of Section 5(8)(i) of IBC.
Facts of the Case
Application under Section 7 filed by Oriental Bank of Commerce (now, Punjab National Bank) Respondent No.2, was admitted by Order dated 28.08.2019. The Appellant submitted a claim before RP on the basis of an Arbitral Award which was accepted and he was permitted to attend third COC (Committee of Creditors) meeting onwards. The Appellant after becoming member of COC, objected to part claim of Respondent No.2 – Oriental Bank of Commerce (OBC), to the extent it is based on corporate guarantees given by the Corporate Debtor for third party dues – debts. Appellant objected that, such part of the claim is not Financial Debt and to that extent voting right percentage of OBC should be reduced.
Excerpts of the order;
# 9. The Adjudicating Authority in Para - 15 of the Impugned Order raised question whether the entire claim of OBC and the claim of India Bulls was contrary to the proposition laid down in the matter of “Anuj Jain” as The Adjudicating Authority took note of the rival contentions and claims and record and referred to the Judgement in the matter of “Anuj Jain” and observed in Para - 19 as under:-
“19. In the present case the debt due to the OBC appears to me falls under the definition of financial debt and the lender is therefore a financial creditor. Because the lender/OBC had invoked the corporate guarantee even before the CIRP (i.e. on 26.09.2018). The concepts of financial debt as discussed in the above cited judgment is different from the debt claimed by the OBC in the case in hand. In this regard it appears to me that once a guarantee is invoked against the Guarantor, the Guarantor steps into the shoes of the principal borrower, the debt that originally is a “financial debt” under section 5(8) towards the principal borrower becomes a “financial debt” towards the guarantor and the same could be enforced as if it were being enforced against the principal borrower. The above said view also seems to have strengthened from the very same judgment cited by the applicant. The Hon’ble SC has discussed at length section 127 and 128 of the Contract Act and referred to a judgment of the High Court in State Bank of India vs. Kusum Vallabhdas Thakkar, 1994 Civil CC 89. It is good to read para 10 of the decision in Smt. Kusum: It read as follows:
- # 10. As regards consideration, it is true that no direct consideration flowed from the plaintiff to the defendant who has made the promise to create a mortgage. But in such tripartite arrangement, anything done for the benefit of the principal debtor is a sufficient consideration to the surety for giving guarantee as expressly provided in Section 127 of the Contract Act. Thus, even though there is no consideration to the third party surety for mortgage, the consideration of having done anything for the benefit of the principal debtor is a sufficient consideration.”
In view of the foregoing discussion and the proposition of law, I am of the view that inclusion of the entire claim of the financial creditor/Oriental Bank of Commerce, by the RP is not illegal, as their claims fall under the definition of the financial debt 5(8)(i) and not contrary to the proposition laid down by the Hon’ble Supreme Court of India in the case of Anuj Jain.”
# 19. We proceed to refer to the Judgement of Hon’ble Supreme Court of India in the matter of “Anuj Jain” on which both the parties are relying on the basis of their arguments.
# 20. In the matter of Anuj Jain, the Corporate Debtor - JIL had mortgaged properties as collateral securities towards the loans and advances which had been made by the lender banks and financial institutions to holding Company JAL. Para - 2.2 of the Judgement (we are referring to Judgement as reported in Manupatra) reads as under:-
“2.2. For what has been indicated in the introduction, it is evident that two major issues would arise in these appeals. One, as to whether the transactions in question deserve to be avoided as being preferential, undervalued and fraudulent, in terms of Sections 43, 45 and 66 of the Code; and second, as to whether the respondents (lender of JAL) could be recognized as financial creditors of the corporate debtor JIL on the strength of the mortgage created by the corporate debtor, as collateral security of the debt of its holding company JAL.”
Hon’ble Supreme Court in Para – 12.4 noted:-
“12.4. The provisions contained in Sections 124, 126 and 127 of the Indian Contract Act, 1872 shall also have bearing on the issues at hand and hence, the same may also be noted as follows:-
# 124.. “Contract of indemnity” defined.- A contract by which one party promises to save the other from loss caused to him by the conduct of the promisor himself, or by the conduct of any other person, is called a “contract of indemnity.”
# 126. ‘Contract of guarantee’, ‘surety’, ‘principal debtor’ and ‘creditor’ – A ‘contract of guarantee’ is a contract to perform the promise, or discharge the liability, of a third person in case of his default. The person who gives the guarantee is called the ‘surety’; the person in respect of whose default the guarantee is given is called the ‘principal debtor’, and the person to whom the guarantee is given is called the ‘creditor’. A guarantee may be either oral or written.
# 127. Consideration for guarantee.- Anything done, or any promise made, for the benefit of the principal debtor, may be a sufficient consideration to the surety for giving the guarantee.”
Thus, it was noticed that Section 127 of the Indian Contract Act provides that anything done, or any promise made for the benefit of the principal debtor, may be a sufficient consideration to the surety for giving the guarantee.
27. ……….. Thus, in the present matter also, even if the borrower did not join the document of guarantee, it would not make any difference to the liability of the Corporate Debtor. When Corporate Debtor guaranteed the payments and the payment has been invoked as per letter dated 26th September, 2018 vide Annexure - B/4 (Reply of Respondent No.2 – Diary No. 21786), the Corporate Debtor is liable for the financial debt.
29. The third party was advanced debt which was admittedly given by the Financial Creditor to the said third party. Even if Corporate Debtor issued guarantee in recovery proceeding for the financial debt of third party and in default the said guarantee/s have been invoked by the Financial Creditor, the Corporate Debtor is liable to pay the amount being amount of liability in respect of guarantee issued which falls in the definition of Section 5(8)(i) of IBC.
32. For above reasons, we agree with the Adjudicating Authority that inclusion of entire claim of Oriental Bank of Commerce (now PNB) and India Bulls (Respondent No.3) and the determination of the voting percentage of the members of COC on the basis of admitted claims of these Financial Creditors, is legal and proper.
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