TMI Blog2022 (5) TMI 912X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to initiate a CIRP against the Guarantor during the pendency of CIRP or liquidation proceeding pending against the Corporate Debtor. Thereby, the claim can not be rejected merely on the ground that the claim has already been admitted in CIRP of M/s. Sitex. Moreover, there is no bar in the IBC, 2016 to submit the simultaneous claim in the CIRP of the Corporate Debtor as well as in the CIRP of the corporate guarantor. The Hon'ble NCLAT in STATE BANK OF INDIA, STRESSED ASSET MANAGEMENT BRANCH VERSUS ATHENA ENERGY VENTURES PRIVATE LIMITED [ 2020 (11) TMI 800 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , NEW DELHI] has upheld that when the principal borrower and surety are undergoing CIRP the creditor is entitled to file a claim in CIRP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate Debtor as well as M/s. Sintex on 12.01.2021. But, the Corporate Debtor as well as M/s. Sintex failed to pay the said outstanding amount. 3. The applicant further submitted that M/s. Sintex was admitted into CIRP at the instance of an application filed by M/s. Zielem Industries Pvt. Ltd.- Operational Creditor in petition bearing no. CP(IB) No. 759 of 2019 vide order dated 18.12.2020 passed by this Adjudicating Authority. Mr. Ketulbhai Ramubhai Patel was appointed as an IRP. 4. The applicant has submitted that claim was submitted to the IRP of M/s. Sintex of Rs. 259,00,53,273.51/- which comprises outstanding liabilities in cash credit and bank guarantee limits as on 17.12.2020. The IRP already admitted the claim of Rs. 228,06,89,55 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der dated 30.06.2021 stayed the order dated 29.06.2021 allowing the withdrawal of the CIRP. Thereafter, an appeal along with a stay application was filed by an intervening party before Hon'ble NCLAT for setting aside the CIRP withdrawal order dated 29.06.2021. The Hon'ble NCLAT vide order dated 12.07.2021 stayed the order dated 29.06.2021 passed by this Adjudicating Authority and restored the order ante-before passing of the impugned order dated 29.06.2021. 8. The applicant further submitted that the Corporate Debtor was admitted into CIRP at the instance of Bank of Barda, a Financial Creditor under Section 7 of the IBC, 2016 vide order dated 24.02.2021 of this Adjudicating Authority in CP(IB) No. 321 of 2021. Mr. Chandra Prakash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the claim has already been admitted by the Resolution Professional of M/s. Sintex with respect to the bank guarantee and credit facility granted by the applicant to M/s. Sintex for which the Corporate Debtor has given a guarantee. Hence, the claim submitted before the IRP of Corporate Debtor is not admissible, is unlawful, and is against the provision of IBC, 2016. 11. We heard the Learned Counsels for both sides and perused the material on record. The moot question of this application is whether a simultaneous claim can be submitted by the financial creditor in the CIRP initiated against the Corporate Debtor as well as against the Corporate Guarantor. It is not a disputed that the M/s. Sintex has already been admitted into CIRP and or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, undisputed, secured or unsecured; 13. We are also of the considered view that the claim submitted by the applicant of Rs. 265,26,94,047.30/- with respect to the corporate guarantee provided by the Corporate Debtor is a financial debt as per Section 5(8)(i) of the IBC, 2016 and the applicant is a financial creditor as per section 5 (7) of IBC, 2016. For ready reference, we reproduce Section 5(7) and Section 5(8)(i) hereunder: Section 5: Definitions. (7) financial creditor means any person to whom a financial debt is owed and includes a person to whom such debt has been legally assigned or transferred to; (8) financial debt means a debt alongwith interest, if any, which is disbursed against the consideration for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lution or 1 [liquidation or bankruptcy of a corporate guarantor or personal guarantor, as the case may be, of such corporate debtor] shall be filed before such National Company Law Tribunal. 15. The Hon'ble NCLAT in State Bank of India vs. Athena Energy Ventures Private Limited , MANU/NL/0436/2020 has upheld that when the principal borrower and surety are undergoing CIRP the creditor is entitled to file a claim in CIRP on both of them. For ready reference, we reproduce the relevant para of the aforesaid judgment hereunder: ....16. We find substance in the arguments being made by the learned Counsel for Appellant which are in tune with the Report of ILC. The ILC in para-7.5 rightly referred to subsequent Judgment of Edelweiss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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