NCLAT (14.08.2018) In Export Import Bank of India and Ors. vs. Resolution Professional JEKPL Private Limited and Ors. [Company Appeal (AT) (Insolvency) No. 304 of 2017,], The question here was whether a creditor can file a claim in the CIRP of Corporate Guarantor, without invoking guarantee, in other words when the claim has not matured. It was held that maturity of claim or default of claim or invocation of guarantee for claiming the amount has no nexus with filing of claim.
Facts of the case - JEKPL had given Counter Corporate Guarantee in favour of EXIM Bank, which invoked guarantee on 30 March, 2017. The RP rejected to consider EXIM Bank as a FC in the CIRP of JEKPL. The AA vide order dated 27 November, 2017 affirmed the decision of the RP. The NCLAT held that default of debt has nothing to do with the claim of a person. It observed:
Excerpts of the Order;
# 6. The EXIM Bank invoked its ‘Counter Corporate Guarantee’ on 30.03.2017 which led to the present dispute and its claim to treat it as a ‘Financial Creditor’ has not been accepted by the Resolution Professional.
# 7. The EXIM Bank declared the amount of loan advanced to Principal Borrower (JENV, Netherlands) as Non-Performing Asset (NPA) on 17.05.2016.Therefore, the EXIM Bank recalled the loan facilities advanced to JENV by letter dated 30.03.2017. Consequently, it had invoked its ‘Corporate Guarantee’ as well as the ‘Counter Corporate Guarantee’ against the JEPLand JEKPL by its letters dated 30.03.2017. Thus, according to EXIM Bank Principal Borrower having defaulted and the liability of Corporate Guarantee as ‘Counter Corporate Guarantee’ being joint and co-extensive with Principal Borrower, the EXIM Bank comes within the meaning of ‘Financial Creditor’ of JEKPL (Corporate Debtor), in terms of Section 5(7) r/w Section 5(8)(h) of I&B Code.
# 8. The Adjudicating Authority by the impugned order dated 27.11.2017 taking into consideration the objection raised by the ‘Resolution Professional’ and the ‘Committee of Creditors’, affirmed the decision of the Resolution Professional and rejected the claim of EXIM Bank.
# 9. The question arises for consideration is as to whether the EXIM Bank, which has been provided with ‘Counter Corporate Guarantee’ by JEKPL (Corporate Debtor) comes within the meaning of ‘Financial Creditor’?
# 21. From the cross checking of the respective deeds of JEPL and JEKPL, we find that both are liable jointly and severally as ‘Principal Debtor’ for the EXIM Bank. Thus, the ‘Corporate Counter Guarantee’ in question in respect of due performance and discharge of obligations and liabilities of JEPL to EXIM Bank, essentially comes within the ambit of its ‘Supplementary/Additional Guarantee’.
# 23. There is admitted default by ‘Principal Borrower’ - JENV, Netherlands and JEHNV in the payment of respective Dollar Loans. The account of JEHNV has been declared NPA since 01.05.2016 and JENV since 07.05.2016. The liability under both the ‘Corporate Guarantee’ has been acknowledged by JEKPL in its Annual Report for the year 2016-17.
# 24. Therefore, for all purpose we find that the ‘Counter Corporate Guarantee’ given by Corporate Debtor (JEKPL) amounts to ‘Guarantee’.
# 46. Thus, it is clear that default of debt has nothing to do with the claim of a person, whether secured or unsecured.
# 50. From the aforesaid provision it is clear that ‘Counter-Indemnity Obligation’ in respect of a guarantee or indemnity or bond or documentary letter of credit is not necessarily to be issued by a bank or ‘financial institution’, but can be issued by any person to whom ‘Financial Debt’ is owed.
# 51. Whether claim, means the claim matured or not is one of the question raised.
# 53. Duties of Interim Resolution Professional have been prescribed under Section 18 and as per clause (b) therein the Interim Resolution Professional is required to receive and collate all the claims submitted by creditors to him pursuant to the public announcement made under Section 13 r/w Section 15. The claim of the parties should be as on the date of initiation of the Corporate Insolvency Resolution Process (date of order of admission and moratorium). Any person who has right to claim payment, as defined under Section 3(6), is supposed to file the claim whether matured or unmatured. The question as to whether there is a default or not is not to be seen.
# 54. Therefore, stand taken by the respondents that the claim has not been matured cannot be ground to reject the claim.
# 55. Section 25 provides the duties of Resolution Professional. As per Section 25(2)(e), the Resolution Professional is required to maintai updated list of all the claims. Aforesaid fact also suggests that the maturity of a claim or default of debt are not the guiding factors to be noticed for collating or updating the claims. The matter can be looked from another angle. It is only in case of ‘debt’ and ‘default’, a ‘Financial Creditor’ or ‘Operational Creditor’, may file applications under Section 7 or 9. The ‘Corporate Applicant’ has also right to file application under Section 10 for initiation of Corporate Insolvency Resolution Process against itself, if it has defaulted to pay the ‘debt’. It does not mean that the persons whose debt has not been matured cannot file claim. The ‘Financial Creditors’ or ‘Operational Creditors’ or ‘secured or unsecured creditors’ all are entitled to file claim.
# 56. Therefore, we hold that maturity of claim or default of claim or invocation of guarantee for claiming the amount has no nexus with filing of claim pursuant to public announcement made under Section 13(1)(b) r/w Section 15(1)(c) or for collating the claim under Section 18(1)(b) or for updating claim under Section 25(2)(e). For the purpose of collating information relating to assets, finances and operations of Corporate Debtor or financial position of the Corporate Debtor, including the liabilities as on the date of initiation of the Resolution Process as per Section 18(1), it is the duty of the Resolution Professional to collate all the claims and to verify the same from the records of assets and liabilities maintained by the Corporate Debtor.
Disclaimer: The sole purpose of this blog is to create awareness on the subject and must not be used as a guide for taking or recommending any action or decision. A reader must do his own research and seek professional advice if he intends to take any action or decision in the matters covered in this blog.
----------------------------------------
Blog; Rule In Clayton’s Case - Claims management during CIRP
NCLAT (23.04.2019) in Edelweiss Asset Reconstruction Company Limited Vs Orissa Manganese and Minerals Limited & Ors.[CA (AT) (Insolvency) No. 437 of 2018] held that;
ReplyDelete# 26. It is also not the case of the Appellant- ‘Edelweiss Asset Reconstruction Limited’ that it has not received the amount from the ‘Principal Borrower’ on default and, therefore, it was liable to invoke the Bank Guarantee which it invokes. In this background, the claim having not matured in absence of alleged default on the part of the ‘Principal Borrower’ and for non-invocation of the Bank Guarantee, the Appellant- ‘Edelweiss Asset Reconstruction Limited’ claim cannot be accepted the debt payable by the ‘Corporate Debtor’ as on the date of the admission (initiation of Corporate Insolvency Resolution Process’).
The Doctrine of “Binding Precedent”.
i). Constitution Bench of Hon’ble SCI in Union of India vs. Raghubir Singh [(1989) 2 SCC 754], observed as under:
"The doctrine of binding precedent has the merit of promoting certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part of his
The Hon’ble Supreme Court in ‘Ghanshyam Mishra and Sons Private Limited’ Vs. ‘Edelweiss Asset Reconstruction Company Limited’, (2021) 9 SCC 657, (Supra), has addressed to this issue. It is pertinent to reproduce the relevant paras with respect to invocation of Corporate Guarantee as hereunder:
ReplyDelete“102. NCLT found that by email dated 6-1-2018 EARC had submitted its claim in Form “C’ for an amount of Rs 648,89,62,395. In response to the said email, RP sought a clarification as to whether the corporate guarantee had been invoked by the applicant. RP had not received any response till 21-2-2018 from EARC. Despite repeated requests made by RP, EARC did not respond to the query made by RP. From the record placed before NCLT, it was clear that EARC had not invoked the corporate guarantee. NCLT therefore posed a question to itself, as to whether an uninvoked corporate guarantee could be considered as matured claim of the applicant. NCLT found that once the moratorium was applied under Section 14 of the I&B Code, EARC was prevented from invoking the corporate guarantee. NCLT further found that the OMML’s guarantee had not been invoked by EARC till the date of completion of CIRP process and once the moratorium was imposed, it could not invoke the corporate guarantee. NCLT therefore found that there is no illegality or irregularity in not admitting the claim of EARC.
XXXXXX
# 119. It is to be noted that in the appeal before NCLAT, EXIM Bank as well as Axis Bank had taken steps immediately after the claim of the said Banks on the basis of corporate guarantee came to be rejected by RP/CoC. After rejection of the claim, the said Banks had filed an application under Section 60(5) before NCLT. On NCLT rejecting the said claim, those Banks had approached NCLAT in appeals which were allowed and the order, as stated hereinabove, was passed.
XXXXX
# 125. We are therefore of the considered view that the appeal deserves to be allowed by expunging SCC OnLine NCLAT paras 28, 42, 43, 51 and 52 from the judgement of NCLAT dated 23-4-2019. It is ordered accordingly. The judgement and order passed by NCLT dated 22-6-2018 is upheld. No costs.” (Emphasis Supplied)