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2020 (6) TMI 793 - Tri - Insolvency and BankruptcyValidity of inclusion of the entire claim of the financial creditors/ Oriental Bank of Commerce, and R3, by the RP - proposition laid down by the Hon’ble Supreme Court of India in the case of Anuj Jain [2020 (2) TMI 1259 - SUPREME COURT] - HELD THAT:- It is on the strength of the pleading and proof of default in repayment of the Loan availed by the CD from the OBC, the section 7 application was admitted vide order dated 28.9.2019. Whether the OBC invoked the corporate guarantee or whether the said portion of debt availed by the third party from the OBC falls out of the definition of financial debt was not at all an issue raised or answered by the NCLT, Kolkata Bench. So admittedly the CD has defaulted in repayment of ₹ 7,54,68,438/- out of the term loan admittedly availed by it. ₹ 19,04,12,812.21p evidently not due from the CD as the borrower but found due from the five third parties referred that they were also committed default in repayment to OBC. In Anuj Jain case, the IRP had rejected the claims to be recognized as financial creditors of the Corporate Debtor JIL on account of the securities provided by Jaypee Infratech Limited (JIL) for the facilities granted to Jaiprakash Associates Limited (JAL). The NCLT rejected the applications filed against the decision of the IRP while concluding that on the strength of the mortgages created by the corporate debtor JIL, as collateral security of the debts of its holding company JAL, the applicants cannot be treated as financial creditors of the corporate debtor JIL - 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. Thus, inclusion of the entire claim of the financial creditor/ Oriental Bank of Commerce, by the RP is not illegal, as their claims falls 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 - the corporate Debtor herein is the Co-borrower of the loan and thus the said corporate Debtor is the Principal Borrower of R-3 and has created the mortgage to secure the said loan. Hence, the debt herein is a financial debt within the meaning of Section 5(8) of the I & B Code and therefore I do not find any illegality in admiring R3’s claim by the RP and also found that admission of the claim not at all contrary to the proposition laid down in the Anuj Jain’s case. It appears that the said judgement of the Hon'ble Supreme Court is not applicable to the present facts and circumstances highlighted on the side of R-3. Thus, inclusion of the entire claim of Oriental Bank of Commerce and R3 and the determination of the voting percentage of the members of the CoC considering the respective admitted claims of the financial creditors are found legal and proper - application dismissed.
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