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2018 (9) TMI 1297 - AT - Insolvency and BankruptcyCorporate Insolvency Resolution Process - Whether the ‘Axis Bank Ltd.’ was also ‘Counter Corporate Guarantor’, comes within the meaning of ‘Financial Creditor’ as defined under Section 5(7) & (8) of I&B Code? - Held that:- 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. 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. EXIM Bank Matter - Held that:- Admittedly, JEKPL has given the ‘Counter-Indemnity Obligation’ by way of Guarantee (Counter Guarantee) and thereby it falls within clause (h) of Section 5(8). Such ‘Counter-Indemnity Obligation’ in respect of Counter Guarantee has been given by JEKPL as the EXIM Bank disbursed the debt against the consideration for the time value of money in favour of the Principal Borrower (JENV).In view of the said provision we hold that EXIM Bank come within the meaning of ‘Financial Creditor’ as defined under Section 5(7) r/w Section 5(8) of the I&B Code. The claim of EXIM Bank having been wrongly rejected by the Adjudicating Authority by impugned order the said order is set aside. Axis Bank - Held that:- Having held that the ‘Export Import Bank of India’ is ‘Financial Creditor’ in relation to ‘JEKPL Pvt. Ltd.’ (Corporate Debtor) and ‘Axis Bank Limited’ is ‘Financial Creditor’ in relation to ‘Edu Smart Services Pvt. Ltd.’ (Corporate Debtor), we hold and direct respective ‘Resolution Professionals’ and ‘Adjudicating Authorities’ to treat the Appellant Banks as members of their respective Committee of Creditors, who in their turn are directed to hold meeting of Committee of Creditors in accordance with law and reconsider/consider the Resolution Plan(s) submitted in each Corporate Insolvency Resolution Process which are in accordance with Section 30(2) of the I&B Code. Both the ‘Committee of Creditors’ now cannot go for rebidding, the respective Resolution Plans, having already been opened. All the appeals are allowed with aforesaid observations and directions.
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