Home Case Index All Cases Insolvency and Bankruptcy Insolvency and Bankruptcy + AT Insolvency and Bankruptcy - 2022 (2) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (2) TMI 420 - AT - Insolvency and BankruptcyApproval of Resolution Plan - claim of arbitration award was not considered - Appellant didn't invoke the 'Corporate Guarantee' and has filed incomplete information - time limitation - HELD THAT:- It is not in dispute that the loan has not been taken by the concerned party as stated and the 'Corporate guarantee' has not been given by the CD - It is also not in dispute that the 'Principal Debtor' has committed a 'default' leading to issue of 'Termination cum Arbitration notice' way back on 07.03.2015 to the 'Corporate Guarantor' and others including the 'Guarantors' were asked to repay the outstanding dues which has been 'defaulted' by the 'Principal Debtor'. From the details available on record, it is amply clear that the Appellant has invoked the 'Corporate Guarantee'. The Appellant has invoked the Guarantee well within the expiry of the term of 'Loan Agreement' concerned - Admittedly, there is undischarged live liability and the amount due to the Appellant has not been paid by the 'Principal Borrower'/'Principal Debtor'. For the undischarged live liability for which the Guarantor /corporate Debtor is obliged to pay in terms of Guarantee Agreements and accordingly, Guarantor is fully responsible for the liability of the Principal Debtor. It is very much clear that the Appellant has submitted its claim within due time frame and with relevant papers and Guarantee is a continuing guarantee - All this do not suggests that the amount is not due and payable in law and there is no default. The CD/Respondent was made aware of the same well in time. The Resolution Professional had rejected the claim of the Appellant mainly on the ground of non-invocation of the corporate Guarantee. The Resolution Professional further submits that the arbitration award was put on the Adjudicating Authority record during the pendency of the application for the first time. Therefore, Resolution Professional submits that he is not responsible for the non-consideration of the documents since the same was never placed on Form 'C' stage - Based on the facts of the case, it is undisputed that the arbitration award against the Corporate Debtor was not placed before the Resolution Professional. Accordingly, the rejection of the claim was made without considering the arbitration award. Instead, the said award was placed before the Adjudicating Authority. The Adjudicating Authority has not taken cognizance of the award and rejected the application filed by the Appellant. Since the Appellants claim is also supported by an arbitration award, which has not been considered either by Adjudicating Authority or Resolution Professional. Therefore, it is appropriate that the claim of the Appellant should be reconsidered even based on the arbitration award - The Resolution Professional to consider the claims of the Appellant & to proceed further in accordance with the law. Appeal allowed.
|