TMI Blog2019 (6) TMI 639X X X X Extracts X X X X X X X X Extracts X X X X ..... o invoke the guarantee (Corporate Guarantee). The Resolution Professional has rightly not accepted the claim of the Appellant- Edelweiss Asset Reconstruction Limited and the Adjudicating Authority has rightly rejected the application filed by the Appellant- Edelweiss Asset Reconstruction Limited for accepting its claim. The rejection of the claim for the purpose of collating the claim and making it part of the Resolution Plan will not affect the right of the Appellant- Edelweiss Asset Reconstruction Limited to invoke the Bank Guarantee against the Corporate Debtor in case the Principal Borrower failed to pay the debt amount, the Moratorium period having come to an end. Appeal dismissed. - Company Appeal (AT) (Insolvency) No. 437 of 2018, I.A. No. 1830 of 2018 With Company Appeal (AT) (Insolvency) No. 438 of 2018 With Company Appeal (AT) (Insolvency) No. 444 of 2018 With Company Appeal (AT) (Insolvency) No. 500 of 2018 - - - Dated:- 23-4-2019 - Mr S. J. Mukhopadhaya, Chairperson And Bansi Lal Bhat, Member (Judicial) For The Appellant : Mr. Ramji Srinivasan, Senior Advocate with Mr. Sanjay Bhat, Ms. Srishti Kapoor and Ms. Sylona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of required information in the Information Memorandum. The last date of the submission of the Resolution Plan was 10th April, 2018, and the Appellant- Edelweiss Asset Reconstruction Company Limited submitted its Resolution Plan which was not considered properly. 6. The stand of the Resolution Professional was that in the second round of bidding, on 13th April, 2018, Edelweiss Asset Reconstruction Company Limited was scored as last and was declared as 3rd Highest and Ghanashyam Mishra Sons Private Limited as 1st Highest Resolution Applicant . 7. Another application under Section 60(5) was filed by the Edelweiss Asset Reconstruction Company Limited on the ground that the Resolution Professional is not admitting the claim of Edelweiss Asset Reconstruction Company Limited . So also, the Appellant raised objections in approving the Resolution Plan submitted by Ghanashyam Mishra Sons Private Limited . 8. Another application was filed by the District Mining Officer, Department of Mines and Geology, Jharkhand under Section 60 (5) of the I B Code challenging the non-admission of its claim to the tune of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titled to exercise its rights in respect of the said debt and the securities created therefor. 14. During the Resolution Process , the Appellant- Edelweiss Asset Reconstruction Limited informed the Resolution Professional through various emails and letters about the loan, more particularly dated 3rd January, 2018 and 4th January, 2018, the assignment of debt along with its underlying securities, including the Corporate Guarantee dated 5th December, 2014 by Orissa Manganese Minerals Limited - ( Corporate Debtor ) and requested him to bring the aforesaid fact to the knowledge of Resolution Applicants / bidders in Orissa Manganese Minerals Limited - ( Corporate Debtor ). 15. Further, the case of the Appellant- Edelweiss Asset Reconstruction Limited is that the proof of claim under Form C was filed for a sum of ₹ 648,89,62,395/- along with supporting documents on 6th January, 2018 which was received by the Resolution Professional . However, the Resolution Professional vide email dated 8th January, 2018 enquired about the invocation of the Corporate Guarantee of Orissa Manganese Minerals Limited - ( Corporate Debtor ) by the Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [ Explanation.- For the purposes of this subclause,- ( i) any amount raised from an allottee under a real estate project shall be deemed to be an amount having the commercial effect of a borrowing; and ( ii) the expression, allottee and real estate project shall have the meanings respectively assigned to them in clauses (d) and (zn) of section 2 of the Real Estate (Regulation and Development Act, 2016 (16 of 2016);] ( g) any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price and for calculating the value of any derivative transaction, only the market value of such transaction shall be taken into account; ( h) any counter-indemnity obligation in respect of a guarantee, indemnity, bond, documentary letter of credit or any other instrument issued by a bank or financial institution; ( i) the amount of any liability in respect of any of the guarantee or indemnity for any of the items referred to in sub-clauses (a) to (h) of this clause; 19. In terms of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t- Edelweiss Asset Reconstruction Limited that it has not received the amount from the Principal Borrower on default and, therefore, it was liable to invoke the Bank Guarantee which it invokes. In this background, the claim having not matured in absence of alleged default on the part of the Principal Borrower and for non-invocation of the Bank Guarantee, the Appellant- Edelweiss Asset Reconstruction Limited claim cannot be accepted the debt payable by the Corporate Debtor as on the date of the admission (initiation of Corporate Insolvency Resolution Process ). 27. For the said reasons, we hold that the Resolution Professional has rightly not accepted the claim of the Appellant- Edelweiss Asset Reconstruction Limited and the Adjudicating Authority has rightly rejected the application filed by the Appellant- Edelweiss Asset Reconstruction Limited for accepting its claim. 28. However, we make it clear that the rejection of the claim for the purpose of collating the claim and making it part of the Resolution Plan will not affect the right of the Appellant- Edelweiss Asset Reconstruction Limited to invoke the Bank Guarantee agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.40 0.74 Payment to Financial Creditors 310.00 295.47 166.21 - Of which Upfront payment (within 90 days) 250.00 50.00 166.21 - Of which NPV of balance payments 40.83 250.00 - - Total of Upfront payment and NPV 290.83 300.00 166.21 - Actual payment terms of balance payments Compulsorily Redeemable Preference Shares of ₹ 60 Crores redeemable at the end of 5th year from NCLT approval date (NPV ₹ 40.83 crores at discount rate of 8% p.a.)-0.01% dividend *Banks to have a put option on RA (GMS NPSPL) at the end of 5th year from NCLT approval *Promoters of RA to have call option on preference shares at anytime at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and there have been various agreements entered into between the Corporate Debtor and the Appellant over the years thereby showing continuity of work, which is evident from the Settlement/Agreement dated 23rd May, 2007, 24th September, 2008 and 19th September, 2009. Subsequently, another Settlement dated 5th June, 2015 was entered into between the management of the Corporate Debtor and the Appellant and the said Settlement specifically provides that the continuity of service of the workmen will be maintained from the date 14th January, 2007, thus unequivocally evincing that these workmen are continuously working with the Corporate Debtor . 36. Ghanashyam Mishra Sons Private Limited - ( Successful Resolution Applicant ) submitted that the Corporate Insolvency Resolution Process commenced on 3rd August, 2017 and expired on 1st May, 2018. After expiry of 270 days of the Resolution Process period, the Appellant filed its claim before the Resolution Professional only on 18th June, 2018. It is informed that the Adjudicating Authority vide its order dated 22nd June, 2018 approved the Resolution Plan . Further, the Appellant moved before the Adjudicating Aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il Court or to move an application before the Court of Competent Jurisdiction against the Corporate Debtor . 43. In the present case, since it is not possible either for the Adjudicating Authority or for this Appellate Tribunal to give any specific finding, we are of the view that the Appellant may move before the Civil Court or Court of Competent Jurisdiction and may file an application before the Labour Court for appropriate relief in favour of the concerned workmen or against the Corporate Debtor if they have actually worked and have not been taken care in the Resolution Plan due to lack of knowledge and non-filing of the claim within time. 44. According to Appellant- Mr. Deepak Singh, he has joined Adhunik group of Industries, the holding company of Orissa Manganese and Minerals Ltd. as the President- Group Head HR in E5 Grade with effect from the date effective from 2nd June, 2014 to 9th March, 2015 at the CTC of ₹ 55,00,000/- per annum. 45. Post termination of duties, the Appellant obtained the full and final settlement letter from the Head Office of 1st Respondent, having its office at Kolkata, where the peri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resolution plan is in contravention of the provisions of any law for the time being in force; ( ii) there has been material irregularity in exercise of the powers by the resolution professional during the corporate insolvency resolution period; ( iii) the debts owed to operational creditors of the corporate debtor have not been provided for in the resolution plan in the manner specified by the Board; ( iv) the insolvency resolution process costs have not been provided for repayment in priority to all other debts; or ( v) the resolution plan does not comply with any other criteria specified by the Board. 51. In the present case, as no ground has been made out in terms of subsection (3) of Section 61 of the I B Code and the decision of the Resolution Professional was not challenged by the Appellant, no relief can be granted. However, this order will not come in the way of the Appellant to move before appropriate forum for appropriate relief if the claim is not barred by limitation. 52. In so far dues of State of Jharkhand is co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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