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2021 (7) TMI 512 - AT - Insolvency and BankruptcySeeking to constitute the Committee of Creditors in accordance with Section 21 of IBC - It is claimed by the Appellant that BPPL has furnished a collateral security to Respondent No. 2 STCI Finance Limited - STCI Finance Ltd. is financial creditor as defined in Section 5(7) and Section 5(8) of the IBC or not - HELD THAT:- The liability arising out of guarantee for any of the items referred in sub-clause (a) to (h) is Financial Debt. The requirement for a debt to be a financial debt and such a creditor to be a financial creditor has been explained very succinctly by Hon’ble Apex Court in ANUJ JAIN VERSUS AXIS BANK LTD. [2020 (2) TMI 1259 - SUPREME COURT] where it was held that the root requirement for a creditor to become financial creditor for the purpose of Part II of the Code, there must be a financial debt which is owed to that person. He may be the principal creditor to whom the financial debt is owed or he may be an assignee in terms of extended meaning of this definition but, and nevertheless, the requirement of existence of a debt being owed is not forsaken. In order to differentiate between the nature and purpose of “mortgage‟ and “guarantee‟ with respect to a loan, the Hon’ble Apex Court proceeds to clarify in Anuj Jain by holding that a mortgagee as a creditor shall be a “secured creditor‟ but not a “financial creditor‟ - The Appellant‟s reliance on Anuj Jain in support of his claim is, therefore, found to be out-of-context from the facts of the instant case. We may look at the ASCOT REALTY PRIVATE LIMITED VERSUS AJAY KUMAR AGARWAL, ORIENTAL BANK OF COMMERCE -SUBSTITUTED BY PUNJAB NATIONAL BANK, INDIA BULLS HOUSING RESPONDENT FINANCE LIMITED, FULLERTON INDIA CREDIT COMPANY LIMITED, SWARNA TECHNOLOGY PRIVATE LIMITED, ESKAY ENCLAVE PRIVATE LIMITED, YUTHIKA TRADING COMPANY PRIVATE LIMITED, PANDEY CHEMICAL PRIVATE LIMITED, ACTUAL DRESSES, GM DRESSES, KRYSTAL DRESSES, QUEEN DRESSES, RDH TECHNOLOGIES PRIVATE LIMITED [2020 (10) TMI 962 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , NEW DELHI] where it was held that The matter cannot, of course, be settled merely by treating the ipsissima verba of Wiles, J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge. Looking to the detailed exposition of Anuj Jain and Ascot Realty in the aforementioned paragraphs and the facts of the present case, we are of very clear and unambiguous view that on the basis of Corporate Guarantee given by BPPL for the loan provided by STCI Finance Ltd. (Respondent No. 2) to BIL; STCI Finance Ltd. is a financial creditor in the Corporate Insolvency Resolution Process of the Corporate Debtor BPPL - there are no error in the Impugned Order. Appeal dismissed.
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