NCLAT (29.11.2021) in Edelweiss Asset Reconstruction Company Limited Vs. 1.V Mahesh IRP Vasan Health Care private Limited & Anr. [Company Appeal (AT) (CH) (INS) No. 226 of 2021] held that;
The claim defined in Section 3 (6) means ‘a right to payment, whether or not such right is reduced to judgment, fixed, disputed, undisputed, legal, equitable, secured or unsecured.’
As per Section 25(2) (e), the Resolution Professional is required to maintain an 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.
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).
The maturity of a claim or default of debt, are not the guiding factors to be noticed for collating or updating the claims.
Excerpts of the Order;
# 1. The present appeal is filed aggrieved by part of the order of the Adjudicating Authority dated 22.02.2021 passed in IA/156/2020 in CA/1/(IB) 2017, whereby the Adjudicating Authority rejected the claim of Rs.54,97,35,793/- of the Appellant in respect of Corporate Guarantee issued by M/s. Vasan Healthcare Pvt. Ltd. for the amounts borrowed by the Vasan Dental Hospitals Pvt. Ltd.
# 3. The Learned Counsel for the Appellant submitted that the main grounds for rejection of the claim of the Appellant by the 1st Respondent is that the Corporate Guarantee was not produced in Claim Form and Corporate Guarantee was not reflected in the Books of Accounts of Corporate Debtor as a contingent liability and the Corporate Guarantee has not been invoked till date. In response to the rejection of the claim of the Appellant by the 1st Respondent, it is submitted that the Appellant vide its E-mail dated 22.01.2020 shared a copy of the Corporate Guarantee dated 11.11.2015 with the Respondent and the Appellant had also adequately submitted and relied upon the Board Resolutions from both the Corporate Debtor and the borrower which were passed while sanctioning the subject loan to the Corporate Debtor. It is submitted that the Corporate Guarantee was also filed before the Hon’ble Adjudicating Authority (NCLT) through convenience volume.
# 5. However, the Learned Adjudicating Authority vide impugned Order rejected the claim of Appellant to the extent of Rs.54,97,35,793/- in relation to the Corporate Guarantee issued by M/s. Vasan Health Care Pvt. Ltd. i.e. the Corporate Debtor for the amount borrowed by M/s. Vasan Dental Care Pvt. Ltd. The Learned Counsel submitted that the Learned Adjudicating Authority taken the same stand as taken by the 1st Respondent while rejecting the claim of the Appellant in Paras51, 52 of the Impugned Order. He further submitted that the Learned Adjudicating Authority failed to appreciate the fact that the Corporate Guarantee having been executed cannot be denied and cannot be called into question. He submitted that without admitting the fact that the Corporate Guarantee is not reflected in the Books of the Corporate Debtor, the said lapse of the Corporate Debtor by itself will not invalidate the Guarantee. The Assignor Bank had obtained requisite Board Resolutions from both the Corporate Debtor and the Borrower while sanctioning the subject loan to the Borrower. The same has also been furnished before the Learned Adjudicating Authority on 19.08.2020 by way of an additional typed set of Papers.
# 14. The points for consideration is whether
(a) Corporate Guarantee was made available to the Respondent No.1 and also before the Adjudicating Authority?
(b) Not reflecting Corporate Guarantee in Books of Accounts, invalidates the claim?
(c) Not invoking Corporate Guarantee and not crystalizing into debt in the Books of Corporate Debtor invalidates the claim.
# 16. The reason as stated for rejecting the claim of the Appellant by the Adjudicating Authority is that the Appellant has not produced the documents namely the Agreement evidencing the furnishing of the Corporate Guarantee issued by the Corporate Debtor in relation to the debt availed by M/s. Vasan Dental Health Pvt. Ltd. Further the Learned Adjudicating Authority taken a stand that at the time of initiation of CIRP the Appellant filed the claim, however, the Corporate Guarantee made in relation to the Assignor Bank i.e. Indu Sind Bank had been omitted.
# 17. The stand of the Appellant is that the Corporate Guarantee furnished to the IRP vide E-mail dated 22.01.2020 subsequent to filing of Form-C and the Claims were admitted in entirety i.e. 507.89 Crores including the Corporate Guarantee. However, claim of Rs.54.97 Crores have been rejected by the RP vide E-mail dated 06.02.2020. From the perusal of documents, it is evident that there is no dispute with regard to the Corporate Guarantee issued by the Corporate Debtor for the loans borrowed by the VDHL a subsidiary of Corporate Debtor
# 18. Further there is a correspondence between the Appellant and the IRP with regard to the exchange of documents. The IRP vide E-mail dated 02.02.2020 Page 203 Vol.2 addressed to the Appellant whereby it is stated as under:
“the claims of EARC (Appellant), the status of admission, abeyance and rejection of claim on account of Corporate Guarantee stated to have been issued by the Corporate Debtor for Vasan Dental, are all enclosed in this word document.”
From the above e-mail it is evident that the IRP received the Corporate Guarantee and the Corporate Guarantee also filed before the Adjudicating Authority. However, the RP/IRP stated that he is not in a position to admit the same. After receipt of the documents from the Appellant, the IRP addressed the above E-mail dated 02.02.2020 and subsequently rejected the claim on 06.02.2020. It is apparent that the documents have been furnished/submitted by the Appellant to the IRP before rejection of the claim of the Appellant. Therefore, the IRP ought to have considered the claim of the Appellant meticulously in accordance with law.
# 19. The Appellant addressed a detailed reply by letter dated 11.02.2020 in response to rejection of claim and clearly stated that while sanctioning the subject loan to VDHPL, the Assignor Bank i.e. Ind Sind Bank Ltd. had obtained requisite Board Resolutions from Vasan Health Care Pvt. Ltd. for the Corporate Guarantee provided by it. It is also stated that the non-recognition of Corporate Guarantee by the Vasan Healthcare Pvt. Ltd. in its annual report cannot be the basis of absolution of its obligations and the same cannot be rejected on the said reason.
# 20. We are of the view that the Appellant has provided all the information with the IRP/RP prior to rejection of claim. Further, after rejection of the claim the Appellant addressed a detailed reply to the objections raised by the IRP. It appears that the IRP has not considered the documents produced before it and without going into detail rejected the claim of the Appellant. Even the Adjudicating Authority merely affirmed the stand taken by the IRP/RP, without verifying the documents placed before it.
# 21. Now, we proceed with the points. With regard to Point (a) i.e. whether the Corporate Guarantee was made available to the Respondent No.1 and before the Adjudicating Authority. As discussed above, it is a fact that the Corporate Guarantee was shared with the 1st Respondent vide E-mail dated 22.01.2020 and the said Corporate Guarantee was also filed before the Adjudicating Authority along with convenience volume. Further it is also evident that before passing the rejection of the claim by the 1st Respondent vide order dated 06.02.2020 the Appellant submitted the Corporate Guarantee to the 1st Respondent therefore the 1 st Respondent ought to have meticulously considered the Corporate Guarantee and other documents made available before him. We are of the view that the observation made by the Learned Adjudicating Authority that the Corporate Guarantee was not produced before it is without any basis.
# 22. With regard to Point No. (b), not reflecting Corporate Guarantee in the Books of Accounts invalidates the claim. It is an admitted fact that the Corporate Guarantee having been executed cannot be denied and cannot unanimously decide by the 1st Respondent to the contrary and cannot be adjudicated upon. The Learned Counsel contended that assuming without admitting that the Corporate Guarantee is not reflected in the Books of the Corporate Debtor, this lapse in itself will not invalidate the Guarantee. The Learned Counsel also stated that the Assignor Bank had obtained requisite Board Resolutions both from Corporate Debtor and the Borrower and the same was also furnished to the Learned Adjudicating Authority on 19.08.2020 by way of additional typed set of documents. This Tribunal accepting the submissions as made by the Learned Counsel and this Tribunal is also of the view that the existence of Corporate Guarantee is not in question either by fact or in law. Therefore, the claim cannot be invalidated on the above ground.
# 23. With regard to the Point No. (c), not invoking Corporate Guarantee and not crystalizing into debt, whether it invalidates the claim. We would like to discuss the definition of the ‘claim’.
# 24. The claim defined in Section 3 (6) means ‘a right to payment, whether or not such right is reduced to judgment, fixed, disputed, undisputed, legal, equitable, secured or unsecured.’ In this regard, a beneficial reference is drawn from the decision of this Tribunal in the matter of Export Import Bank of India v Resolution Professional of JEKPL Pvt. Ltd. (NCLAT, Delhi) Company Appeal No.304 of 2017 dated 14.08.2018, whereby this Tribunal held at Para 54, 55 and 56 extracted as under:
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 maintain an 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.”
# 25. We are in-agreement with the above decision. The Resolution Professional is required to maintain an updated list of all claims. The maturity of a claim or default of debt, are not the guiding factors to be noticed for collating or updating the claims.
# 26. We have also perused the Letter of Continuing Guarantee (Corporate Guarantee) executed by Vasan Healthcare Pvt. Ltd. in favor of the Assignor Bank i.e. Indu Sind Bank Ltd. annexed at Pages 118 to 133 to the typed set of documents filed by the Appellant.
# 27. After analyzed the points as discussed above, in (a) (b) and (c), this Tribunal comes to a resultant conclusion that the Corporate Guarantee was made available with IRP and Adjudicating Authority. Thus, the IRP and the Adjudicating Authority cannot take the unsustainable and unsound technical stand as discussed in Point ‘b and ‘c’ above while rejecting the claim. We unequivocally negative the stand taken by the IRP and the Adjudicating Authority. Having satisfied the grounds as made by the Appellant, the following order is passed.
a. Paras 52 and 56 of the Impugned Order dated 22.02.2021 in IA/156/2020 in CA/1/2017 passed by the Adjudicating Authority with respect to rejecting the claim of the Appellant to the extent of Rs.54,97,35,793/- is hereby quashed and set aside.
b. We direct the 2nd Respondent (RP) to verify all the documents with regard to Corporate Guarantee issued by Vasan Healthcare Pvt. Ltd. in respect of above claim.
c. After due verification of the documents, the 2 nd Respondent is hereby directed to consider and admit the claim of the Appellant with respect to its claim of Rs.54,97,35,793/-.
d. With the above directions, the Appeal is allowed. No orders as to costs.
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