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2022 (7) TMI 661 - AT - Insolvency and BankruptcyAppellant are Financial Creditors or not - no direct disbursal of amount to the Corporate Debtor/Guarantor - Related Parties of the Corporate Debtor or not - individual Homebuyer has the locus to challenge the admission of a Claim of another Creditor/Financial Creditor or not - appellant can make a Claim on the basis of the Guarantee Deed which was never invoked pre-commencement of the CIRP, and remained uninvoked even as on the date of filing of the Claim, thereby meaning that Right to Payment has not yet accrued - Appellants were in a position to control the affairs of the Corporate Debtor, to fall within the ambit of the definition of Related Party as defined under Section 5(24) of the Code or not. Financial Debt or ot - direct disbursal of amount by ECL to the Corporate Debtor - Applicability of decision in the case of Anuj Jain [2020 (2) TMI 1259 - SUPREME COURT], to the facts of the attendant case and holding that the Appellants are not Financial Creditors in view of the fact that there was no direct disbursal of amount to the Corporate Debtor/Guarantor - HELD THAT:- This Tribunal is of the considered view that ECL, being the original lender had disbursed the amount in terms of the Facility Agreement entered into and the disbursement of debt is essentially to the Issuer/Borrower and not to the Corporate Guarantor i.e., Palm Developers. By providing Corporate Guarantee, Palm Developers has agreed to incur the debt, if due and payable. A Guarantee is included as one of the illustrations which specifies the definition of Financial Debt under Section 5(8)(i) of the Code - despite the fact that there was no direct disbursal of amount to the Corporate Guarantor, any amounts released to the Issuer/Principal Borrower and not to the Corporate Guarantor does constitute Financial Debt as defined under Section 5(8) of the Code and it cannot be said that such amounts do not have consideration for Time Value of Money. In the facts of the attendant case, it has to be only seen whether there was a default and the amounts are due and payable as on the date of filing of the Claim - thus, the ratio of Anuj Jain is not applicable to the facts of the attendant case on hand. Locus of the Individual Homebuyer/Financial Creditor to challenge the constitution of the CoC - HELD THAT:- The fact which is to be kept in mind is that the Appellants have not preferred any Section 7 Applications, but have filed Claims in the ongoing CIRP Proceedings of the Principal Borrower/Saha and the Corporate Guarantor/Palm Developers. - This Tribunal is of the earnest view that the Appellants cannot Claim the amounts in the CIRP of the Corporate Debtor who is a Corporate Guarantor on the basis of the Deed of Guarantee which was never invoked as on the date of filing of the Claims. The record also does not show that any Notice in terms of Clause 2.1(ii) of the Deed of Guarantee was ever issued to the Corporate Debtor. There are no substance in the argument of the Appellant Counsel that no such Notice is required to be issued as invocation of Guarantee is not a pre-condition to file a Claim. The Deed of Guarantee stipulates such a notice to be issued which was never sent as the Deed was never invoked prior to CIRP filing of Form C - When the Appellants Claim has been rejected in the CIRP of the Principal Borrower, the onus is on the Appellants to substantiate how their claims can be admitted in the CIRP of the Corporate Guarantor when they have not even invoked the Guarantee prior to CIRP commencement, or as on the date of filing of Form C, which they have failed to discharge. Issue of Related Party - HELD THAT:- It is seen from Clause 21 of the Sanction Letter that ECL had the controlling power to appoint Real Estate Agent/Distribution Agent on behalf of the Corporate Debtor for sale of specific residential units/inventory totaling to 1,77,9000 sq. ft. saleable area in various projects of the promoters - In the terms and conditions of the Facility Agreement, under the caption Special Conditions Clause 24(4) it is clearly stated that The Borrower shall execute irrevocable Power of Attorney authorizing representatives of Lender to execute the sale deed and represent on behalf of the Borrower and Security Providers before the Registrar on its behalf to register the Sale Deed for units to be sold in each of its Projects. The first part of the term Control refers to de jure control, which includes the right to appoint directors of the Company. The second part of the expression Control refers to de facto control, whereby, person/body corporate directly or indirectly can positively influence in any manner, the management or policy decisions. Any decision which has a long term effect, for formulation of Business Plans, comes within the purview of policy making. The argument that the Clauses with respect to Business Plans and any substantial/important charges requiring the approval of the Debenture Holders, is only restrictive and does not construe positive control is untenable. The irrevocable PoA executed in favour of the Debenture Holders suggests Positive and proactive control as the Appellants are in a position to take proactive decisions regarding the rights of the Corporate Debtor. The Appellants do have Positive Powers and are in a position to directly and indirectly Control the management and the policy decisions of the Corporate Debtor and hence there are no illegality in the Impugned Order passed by the Adjudicating Authority affirming the decision of the RP in deleting the Appellants from being part of the CoC as stipulated for under Section 21(2) of the Code. Appeal dismissed.
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