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2022 (8) TMI 766 - AT - Insolvency and BankruptcyFinancial Debt or Operational Debt? - mobilization advance given by the Appellant to the Corporate Debtor -HELD THAT:- Mobilization advance which was given by the Appellant to the Corporate Debtor was for mobilization of material and workforce on the site. Mobilization advance was not disbursed against the consideration for the time value of money. The submissions which has been pressed by the Learned Counsel for the Appellant is that the Corporate Debtor having given guarantee by the Guarantee Deed dated 14.02.2011 which was extended up 23.11.2021 transaction becomes a Financial Debt within the meaning of Section 5(8)(i). When we look into Section 5(8)(i) it is clear that the guarantee referred to in Section 5(8)(i) relates to any of the items referred to in sub-clauses (a) to (h) of Section 5(8) of the Code. The mobilization advance is not covered by any of the sub-clauses (a) to (h) of sub-section 8 of Section 5 of the Code hence the provisions of Section 5(8) (i) does not lend any support to the Appellant. The guarantee referred to in Section 5(8)(i) must relate to any of the items referred to in sub clauses (a) to (h). The mobilization advance given by the Appellant to the Corporate Debtor does not fall in any of the clauses (a) to (h) hence no benefit can be availed of the Appellant of provisions of Section 5(8)(i). Whether the mobilization advance by the Appellant to the Corporate Debtor was an Operational Debt? - HELD THAT:- In view of the law laid down by the Hon’ble Supreme Court in M/S CONSOLIDATED CONSTRUCTION CONSORTIUM LIMITED VERSUS M/S HITRO ENERGY SOLUTIONS PRIVATE LIMITED [2022 (2) TMI 254 - SUPREME COURT], the mobilization advance given by the Appellant to the Corporate Debtor is clearly an Operational Debt and the Adjudicating Authority committed error in rejecting the claim of the Appellant as an Operational Debt. As noted above, in the present case, the Resolution Plan has already been approved by the Adjudicating Authority on 28.10.2021. The present Appellant has also filed an Appeal Company Appeal (AT) Ins. No. 1092 of 2021 challenging the Order dated 28.10.2021 which Appeal stood withdrawn by the Appellant vide Order dated 04th August, 2022. In view of the withdrawal of the Appeal filed by the Appellant, Resolution Plan has to be implemented. The claim of the Appellant is to be treated as an Operational Debt and the Resolution Applicant is under obligation to include the claim of the Appellant as an Operational Debt and make payment to the Appellant also as an Operational Creditor - appeal allowed.
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