TMI Blog2020 (7) TMI 757X X X X Extracts X X X X X X X X Extracts X X X X ..... IBC 2016? - HELD THAT:- As per section 14(1)(c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 is prohibited. It is well settled position that the bank guarantee falls within the purview of the definition of Security interest as defined under Section 3(31) of the IBC, which is already quoted. Therefore, during the moratorium the bank guarantee cannot be invoked as the same is prohibited under Section 14(1)(c) of the IBC. Application dismissed. - I.A. 2085/ND/2020 AND IA 2572/ND/2020 IN COMPANY PETITION NO. (IB)-1048(ND)/2019 - - - Dated:- 31-7-2020 - CH. MOHD. SHARIEF TARIQ, MEMBER (J) AND L.N. GUPTA, MEMBER (T) For the Appellant : Ramjana Roy Gawai, Vasudha Sen and Ananya Chug, Advocates For the Respondent : P.B.A. Srinivasan, Avinash Mohpatra, Abhishek Garg, Advocates ORDER CH. MOHD. SHARIEF TARIQ, MEMBER (J) 1. Since a similar and same issue is involved in both the Applications. Therefore, both the applications are taken together for dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India.) 7. It is stated by the applicant that non-applicant No. 2 extended the validity of the aforesaid BG from 21.10.2019 up to 21.04.2020 vide its Letter dated 21.10.2019. It is added that all the terms and conditions of the BG continued to remain in force and unchanged. Moreover, vide clause III of the amended BG, the Respondent Bank reconfirmed their liability to pay the guaranteed amount forthwith once a written Claim/demand was served upon. 8. It is further stated that the Corporate Debtor defaulted in making payments. Therefore, applicant was constrained to invoke the BG vide its letter dated 03.03.2020 written to the non-applicant No. 2. It is stated that the Applicant submitted the original BG to the Respondent Bank. 9. It is submitted by the applicant that they had written emails dated 18.03.2020 and 19.03.2020 to the non-applicant No. 2, informing that they had deposited the original BG at the concerned branch. It is added request was also made to release the guaranteed amount on urgent basis. 10.lt is further stated that the aforesaid emails were replied by the non-applicant wherein, they submitted that they will take the approval from the IRP before rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ject or operation entirely. Under a performance guarantee, compensation of money will be made by the bank when there is any delay in delivering the performance or operation. Payment will have to be made even if the service is delivered inadequately. Now, we may refer to opening para of the guarantee dated 22.04.2019 so as to ascertain the nature of the guarantee in question. The opening para of the guarantee reads as under: WHEREAS M/s. Bharat Aluminum Company Limited, having its place of Business at P.O. BaJco Nagar, Korba - 495 684 (Chhattisgarh), hereinafter for the sake of brevity referred to as the SELLER (which expression shall include its successors in- interest and assigns) AND J P ENGINEERS PVT LTD having its Registered Principal Office of business 3/8, JND FLOOR ASAF AU ROAD, DELHI-110002, hereinafter for the sake of brevity referred to as the BUYER (which expression shall include all its successors-in-interest and executors as the case may be) have agreed for the sale and Purchase of Aluminium in accordance with the arrangement mutually agreed between the Parties. The Seller is agreeable to accept Bank Guarantee for ₹ 1,60,00,000.00 (Rupees One Crore Sixty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f essential goods or services to the corporate debtor as may be specified shall not be terminated or suspended or interrupted during moratorium period. (3) The provisions of sub-section (1) shall not apply to - (a) such transactions as may be notified by the Central Government in consultation with any financial sector regulator; (b) a surety in a contract of guarantee to a corporate debtor. (4) The order of moratorium shall have effect from the date of such order till the completion of the corporate insolvency resolution process: Time-limit for completion of insolvency resolution process. Provided that where at any time during the corporate insolvency resolution process period, if the Adjudicating Authority approves the resolution plan under sub-section (1) of section 31 or passes an order for liquidation of corporate debtor under section 33, the moratorium shall cease to have effect from the date of such approval or liquidation order, as the case may be. 18. As per section 14(1)(c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstru ..... X X X X Extracts X X X X X X X X Extracts X X X X
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