TMI Blog2021 (3) TMI 763X X X X Extracts X X X X X X X X Extracts X X X X ..... t as Financial Creditor in the CoC - Appeal allowed. - Company Appeal (AT) (Ins.) No. 186 of 2021 - - - Dated:- 8-3-2021 - [Justice A.I.S. Cheema] Member (Judicial) And [Dr. Alok Srivastava] Member (Technical) For the Appellant : Mr. VM Kannan, Mr. Sanjay Kapur, Ms. Megha Karnwal and Mr. Sambit Panja, Advocates For the Respondent : Mr. Rishav Banerjee, Mr. Pranay Agarwal, Ms. Ankita Baid, Advocates for RP Mr. Animesh Mukhopadhyay, RP (Party in person) ORDER (Virtual Mode) The Appeal has been filed by the State Bank of India against Impugned Orders dated 02.02.2021 passed in IA (IB) No. 755/KB/2020 in CP (IB) 159/KB/2019. The Appellant claims that the question of law involved in this matter is whether for the debt due is it admissible for the Financial Creditor to file separate claims:- (i) In the CIRP of the Corporate Guarantor; and (ii) In the CIRP of the Principal Borrower. 2. Appellant claims that the bank had granted credit facility in the nature of Term Loan to Purple Advertising Services Pvt. Ltd. (Principal Borrower). The present Respondent No. 1 was Guarantor for securing the dues of the Principal Borrower. The Principal Borrower became th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating Authority, the Adjudicating Authority without discussing either the Judgment or the provisions as appearing in Section 60 of the IBC which have been amended, simply dismissed the I.A. 6. The Learned Counsel for the Resolution Professional has made submissions distinguished Judgment in the matter of Athena Energy Ventures Pvt. Ltd. and submits that in the Judgment, if the Resolution Professional in both the CIRP was common such claim could be made and looked into. 7. The Learned Counsel for the Resolution Professional has further submitted that the Resolution Professional considered another Judgment of another Bench of this Tribunal which was larger Bench and in which Judgment in the matter of Dr. Vishnu Kumar Agarwal Vs. M/s Piramal Enterprises Ltd. has been followed. 8. The Learned Counsel submitted that Respondent before Adjudicating Authority made submissions and referred to Judgments, noted by Adjudicating Authority in Impugned Order in para 14 (d). He submits that there are Judgments of the Hon ble Supreme Court with regard to following subsequent larger Bench Judgment. 9. It is further submitted that under Section 21 (4) (a) of the IBC the Financial Cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RP which would result in reduction of voting shares of such CoC member then such aggrieved party is at liberty to move this Adjudicating Authority in terms of section 60(5) of the Code. The fact that a claim, if admitted, would result in variation of the shares of the existing constituents of the CoC, is no reason for the RP to consult with the CoC prior to decision on collating claims. 20. In view of the above the issues framed at paragraph 4 are answered as follows: a. Whether the Applicant can file a claim for the same debt with respect to the same loan in CIRP of two Corporate Debtors?---No b. Whether the Resolution Professional has dealt with the rejection of claim in accordance with the Code?---No c. Whether the Committee of Creditor can decide about the claim lodged by the Applicant?---No d. Whether the CoC is required to be heard in the present application?---No 21. The IA (IB) No. 755/KB/2020 shall stand disposed of. 11. Thus, the Adjudicating Authority did not consider the provisions or Judgments. In Judgment in the matter of State Bank of India Vs. Athena Energy Ventures Pvt. Ltd. (2020) SCC online NCLAT 774, we had referred to Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enforced. We will refer to the above Judgment in the matter of Ramakrishnan later. At present, we have referred to the above provision which had come on the statue book when Act 26 of 2018 was enforced and the Judgment in the matter of Piramal which was passed on 8th January, 2019 did not notice the above amendment. If the above provisions of Section 60 (2) and (3) are kept in view, it can be said that IBC has no aversion to simultaneously proceeding against the Corporate Debtor and Corporate Guarantor. If two Applications can be filed, for the same amount against Principal Borrower and Guarantor keeping in view the above provisions, the Applications can also be maintained. It is for such reason that Sub-Section (3) of Section 60 provides that if insolvency resolution process or liquidation or bankruptcy proceedings of a Corporate Guarantor or Personal Guarantor as the case may be of the Corporate Debtor is pending in any Court or Tribunal, it shall stand transferred to the Adjudicating Authority dealing with insolvency resolution process or liquidation proceeding of such Corporate Debtor. Apparently and for obvious reasons, the law requires that both the proceedings should be be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing into Judgments when Section 60 of IBC is clear and makes the two CIRPs maintainable in such matters. If they are maintainable, claim in both (subject to adjustments on receipts) would also be maintainable. There is no need to be tied down with Judgments if we see Section 60 which has been reproduced (supra). That is the law. 14. We have yet passed another Judgment, incidentally today, in Company Appeal (AT) (Ins.) No. 1186 of 2019 in Edelweiss Asset Reconstruction Company Ltd. in which in para 8, we have held that: We do not find that there is bar for the Financial Creditor to proceed against the Principal Borrower as well as Corporate Guarantor at the same time, either in CIRPs or file claims in both CIRPs . 15. For the above reasons we find that the orders of the Adjudicating Authority as passed cannot be maintained. 16. Although this Appeal came up today for the first time but as the issue involved is only of law and time in CIRP is material, we have heard counsel of both sides and we are passing the present order. 17. The Appeal is allowed. The Impugned Order is set aside. The Respondent will consider the claim of the Appellant Borrower and appropriately ..... X X X X Extracts X X X X X X X X Extracts X X X X
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