TMI Blog2020 (10) TMI 386X X X X Extracts X X X X X X X X Extracts X X X X ..... tor against the Corporate Debtor arises from the same set of debt owed by the Principal Borrower. Since an application against the Principal Borrower has already been admitted vide order dated 08.01.2020 in CP. No. 1348 of 2019, this Adjudicating Authority is of the view that the present application is bound to be rejected without any cost. Let the copy of the order be communicated to the Financial Creditor and the Corporate Debtor. - (IB) 1833 (ND)/2019 - - - Dated:- 28-2-2020 - Ina Malhotra , Member ( J ) And Sumita Purkayastha , Member ( T ) For the Appellant : Shikhil Suri , Shiv Kumar, Nikita Thapar For the Respondent : Farruk Khan and Shantala Sankrit , Advocates ORDER Sumita Purkayastha , Member ( T ) 1. The present petition has been filed under Section 7 of the Insolvency Bankruptcy Code, 2016, (hereinafter referred to as the Code ), praying for initiation of Corporate Insolvency Resolution Process of the Respondent/Corporate Debtor on grounds of its inability to liquidate its financial debt. 2. As per the averments made Earthcon Infracon Pvt. Ltd. (EIPL) Principal Borrower ) who is engaged in the business of real estate construction and d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the entirety of the tenure on the outstanding amount along with the Resolution Fee of 10% under the DTD dated 13.06.2017. 6. The Demand Notice dated 09.05.2019 was issued to the Corporate Debtor by the Financial Creditor under the Deed of Corporate Guarantee Demand Notice dated 05.07.2019 was sent to the Corporate Debtor under Corporate Guarantee for Redemption of Debentures. 7. Consequent to the issuing of notice by this Tribunal the Corporate Debtor filed a reply on 26.08.2019 in which the following contentions have been taken: i. As per Clause 11 of the Term Sheet executed on 28.10.2017, the tenure of investment/date of maturity of the Debentures were 30 months from the date of 1st disbursement of Tranche which was 30.06.2017. Further as per the terms agreed between the Borrower and the Financial Creditors pursuant to the understanding as recorded in the Term sheet, the Financial Creditor disbursed the 1st tranche of the repayments of ₹ 13.15 Crore demanded by preponing the repayment. It is submitted that the aforesaid disbursement of ₹ 13.15 Cr began on 30.06.2017 and were concluded on 06.09.2017, in contravention to the understanding as recorded in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order was reserved by this Court on 07.11.2019. The Operational Creditor as well as the Corporate Debtor have also submitted their written submissions which have been gone through by us alongwith the documents on record. 9. The following contentions have been taken by the Corporate Debtor: i. The Financial Creditor have granted financial facility of ₹ 52,50,000/- to a company namely Earthcon Infracon Pvt. Ltd. (EIPL). The said EIPL has been sent to CIRP vide order dated 23.08.2019 passed by a coordinate bench of this Hon'ble Tribunal in case bearing cp. No. 1601/ND/2019 titles as M/S. Emperos Infrastructure Pvt. Ltd. vs. M/S. Earthcon Infracon Pvt. Ltd. Subsequently Committee of Creditors (CoC) was constituted and the Financial Creditor No. 2 (Beacon) filed its claim of ₹ 60,90,62,274/- before the IRP appointed in terms of aforesaid order dated 23.08.2019. ii. The Financial Creditor No. 2 preferred an appeal before the Hon'ble NCLAT against the order dated 23.08.2019 vide case No. CA (AT) (Insolvency) No. 896 of 2019 tided as Beacon Trusteeship Ltd. vs. Earthcon Infracon Pvt. Ltd. Anr. The Hon'ble NCLAT vide its order dated 06.09.2019 dismisse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... separate 'Corporate Insolvency Resolution Processes'. If same claim cannot be claimed from 'Resolution Professionals' of separate 'Corporate Insolvency Resolution Processes', for same claim amount and default, two applications under Section 7 cannot be admitted simultaneously. Once for same claim the 'Corporate Insolvency Resolution Process' is initiated against one of the 'Corporate Debtor' after such initiation, the 'Financial Creditor' cannot trigger 'Corporate Insolvency Resolution Process' against the other 'Corporate Debtor(s)', for the same claim amount (debt). 32. There is no bar in the 'I B Code' for filing simultaneously two applications under Section 7 against the 'Principal Borrower' as well as the 'Corporate Guarantor(s)' or against both the 'Guarantors'. However, once for same set of claim application under Section 7 filed by the 'Financial Creditor' is admitted against one of the 'Corporate Debtor' ('Principal Borrower' or 'Corporate Guarantor(s)'), second application by the same 'Financial Creditor' for same set of claim and de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs cannot be allowed to initiate and trigger three simultaneous CIRP for one set of claim as per the law. 10. The following contentions have been taken by the Financial Creditors: i. The proof of default is in (i) Form C which is a record of financial information whith the National E-Governance Services Limited (NeSL) as on 10.05.2019 showing the amount due. ii. If the Ld Adjudicating Authority is of the view that a Financial Creditor can, in relation to a debt under Section 7 of IBC 2016, proceed against two Corporate Guarantors or one Corporate Guarantor and the Principal Borrower, then there is no bar/embargo on the Ld Adjudicating to decide the present Section 7 Application. Therefore it is not in any manner a question of judicial propriety. iii. That the issue on proceeding against the Corporate Guarantor or Principal Borrower is no longer res integra. In Dr. Vishnu Kumar Agarwal V. M/s. Piramal Enterprises [Company Appeal (AT) (Ins.) No. 346 of 2018] the Hon'ble NCLAT has observed in Para 32 of the order that there is no bar in the Insolvency and Bankruptsy Code for filing simultaneously two applications under Section 7 against the Principal Borrower as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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