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2021 (3) TMI 470 - AT - Insolvency and BankruptcyMaintainability of appeal - CIRP has been initiated against the principal borrower - Whether the Appellant have filed claim in CIRP initiated against the Corporate Guarantor? - HELD THAT:- Similar issue had come up before us in the matter of State Bank of India vs. Athena Energy STATE BANK OF INDIA, STRESSED ASSET MANAGEMENT BRANCH VERSUS ATHENA ENERGY VENTURES PRIVATE LIMITED [2020 (11) TMI 800 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , NEW DELHI] where it was held that We are unable to agree with the arguments of Learned Counsel for Respondent that when for same debt claim is made in CIRP against Borrower, in the CIRP against Guarantor the amount must be said to be not due or not payable in law. Under the Contract of Guarantee, it is only when the Creditor would receive amount, the question of no more due or adjustment would arise. It would be a matter of adjustment when the Creditor receives debt due from the Borrower/Guarantor in the respective CIRP that the same should be taken note of and adjusted in the other CIRP. There is no bar for the Financial Creditor to proceed against the principal borrower as well as Corporate Guarantor at the same time, either in CIRPs or file claims in both CIRPs - The matter is remitted back to the Adjudicating Authority and the Adjudicating Authority is requested to pass further Orders with regard to the claim made by the Appellant which was required to be considered by the IRP/RP - Appeal allowed by way of remand.
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