TMI Blog2022 (10) TMI 586X X X X Extracts X X X X X X X X Extracts X X X X ..... elied upon was in terms of the related party transaction and consequence submission of Resolution Plan by such a related party . This Tribunal is also conscious of the fact that it is obligatory under law to produce a document duly stamped in accordance with the provisions of Maharashtra Stamp Act, 1958, for it to be considered as being enforceable in law and claims were required to be submitted to the IRP i.e., the address in Maharashtra within the State of Maharashtra and it is only to evade the stamp duty, that the documents were not shared electronically with the IRP. It is relevant to mention that an Application under Section 30(6) of the Code was preferred by the Resolution Professional seeking approval of the Resolution Plan, in IA920/2020, which was allowed by the Adjudicating Authority, vide Order dated 03.12.2020. This Appeal is devoid of merit - Appeal dismissed. - COMPANY APPEAL ( AT ) ( INSOLVENCY ) NO. 304 of 2021 - - - Dated:- 14-10-2022 - [ Justice Anant Bijay Singh ] Member ( Judicial ) And [ Ms. Shreesha Merla ] Member ( Technical ) For the Appellant : Mr. Ramji Srinivasan, Sr. Advocate with Mr. Jash Shah, Ms. Rajshree Chaudari, Ms. Shruti Pan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile 514.34 514.34 - 5% 7. VTB Capital 511.91 511.91 5% 8. Doha Bank 408.81 408.81 - 4% 9. Union Bank of India 1009.35 353.30 656.05 4% 10. Emirates NBD 324.33 324.33 - 3% 11. Industrial and Commercial Bank of China 1832.91 278.48 1554.43 3% 12. Oriental Bank of Commerce 276.68 276.68 - 3% 13. Indian Overseas Bank 184.70 184.70 - 2% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant and Respondents 3 to 7 who were claiming to be the Financial Creditors of the Corporate Debtor on the basis of the Guarantees. 6. Submissions of the Learned Sr. Counsel appearing on behalf of the Appellant:- It is submitted that as per the Code, a Creditor is entitled to make its claim against the Corporate Debtor , only on the basis of Guarantee extended by such Corporate Debtor . Hence, SBI Consortium is entitled to make its claim against the Corporate Debtor (RITL) on the basis of the Corporate Guarantees issued by RITL and which has already been invoked by SBI Consortium. Even though SBI has not disbursed any money to RITL, it is entitled to make its claims against the RITL on the basis of the Guarantees executed. RITL has provided Corporate Guarantees on his own volition and for any alleged violation of the Doha Bank facility by RITL. The Doha Bank Consortium can pursue his own remedies under applicable law. It was only on the basis of the directions received from RBI that SBI has declared the account of RITL as an NPA on 22.12.2017 with retrospective effect from 26.08.2016. On 03.03.2017, when RITL executed the Corporate Guarantees, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Telecommunication Service provider, it is not bound by the provisions of Section 186 of the Act and therefore the Corporate Guarantees provided by RITL or not in violation of this Section. Further RITL has provided a Certificate dated 26.04.2017 to SBI and confirmed that RITL is in compliance of Sections 185 and 186 of the Act. It is submitted that the Adjudicating Authority has failed to recognise that the SBI Consortium have in their favour, a Deed of Hypothecation . Keeping in view the Order passed in IA3055/2019 and that the Deed of Hypothecation is similar to the one considered by the Adjudicating Authority in I.A.3055/2019, the SBI Consortium ought to have been permitted to continue to be recognised as Financial Creditors of RITL. It is vehemently contended by the Learned Sr. Counsel that the Adjudicating Authority rejected Prayer A but proceeded to grant the consequential reliefs under Prayer C D, being declassification of the Consortium Members which are party to the IA1960/2019 as Financial Creditors of RITL and reconstitution of the CoC respectively. The natural consequence of rejection of Prayer A ought to have been the dismissal of IA 1960/2019. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd interest of the direct Lenders of the Corporate Debtor . At the time of creation of these purported Guarantees, the Corporate Debtor was itself in default to repay the outstanding loans to Doha Bank under the terms of the Facility Agreement entered into between the Doha Bank and the Corporate Debtor . It is strenuously contended by the Learned Sr. Counsel that these Guarantees were created when the Corporate Debtor was under severe financial losses. Accounts of RCOM, RTL and Corporate Debtor were classified as an NPA by RBI on 26.08.2016, which indicates that all the three were in default for 90 days prior to 26.08.2016. It is only after the intervention of RBI and the subsequent Audit that SBI declared the account of RCOM, RTL and Corporate Debtor as an NPA with effect from 26.08.2016, and the consequences of NPA would apply from that date and not from 22.12.2017. There is no disclosure of the Guarantee in the Financial Statements of the Corporate Debtor for the Financial Year 2016 17 2017 18. Even in the Arbitration Agreement signed between the Lenders of the Corporate Debtor and its related parties , there was no disclosure of these purported Guaran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s undertaken by Mr. Manish Dhirajlal Kaneria, the erstwhile IRP; that the issue regarding the existence and submission of the two Corporate Guarantees before the Adjudicating Authority has now become redundant as the same has been produced before this Tribunal. Apart from this brief Reply, there is no pleading on record to establish that the Guarantees were verified at New Delhi by the IRP/RP. 10. The contention of the Learned Sr. Counsel for the Appellant that 20.12.2017 has to be taken as the date of NPA and not 22.08.2016 is unsustainable as the Appellant themselves have declared the Corporate Debtor as an NPA, with effect from 26.08.2016, which indicates that the Corporate Debtor was in default for at least 90 days prior to 26.08.2016. This Tribunal in Avantha Holdings Ltd. (Supra) is not applicable to the facts of this case as the observation relied upon was in terms of the related party transaction and consequence submission of Resolution Plan by such a related party . 11. This Tribunal is also conscious of the fact that it is obligatory under law to produce a document duly stamped in accordance with the provisions of Maharashtra Stamp Act, 1958, for it to be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, keeping in view the observations made by this Tribunal in Doha Bank Ors. (Supra) which Appeal challenged the Impugned Order in IA3055/2019. 15. Keeping in view the foregoing reasons we do not find any of the Judgements relied upon by the Appellant, applicable to the facts of the attendant case. It is relevant to mention that an Application under Section 30(6) of the Code was preferred by the Resolution Professional seeking approval of the Resolution Plan, in IA920/2020, which was allowed by the Adjudicating Authority, vide Order dated 03.12.2020. An Appeal challenging the Plan was preferred by the Operational Creditors before this Tribunal in Pratap Technocrats (P) Ltd. Ors. Vs. Monitoring Committee of Reliance Anr. Comp. App. (AT) (Ins.) No. 1134 of 2020, which was dismissed by a Three Member Bench, as devoid of merit, observing that the distribution mechanism adopted in that case was as per the provisions of Section 53 of the Code. On an Appeal preferred by M/s. Pratap Technocrat Private Limited , the Operational Creditor of the Corporate Debtor , the Hon'ble Supreme Court in Pratap Technocrats (P) Ltd. Ors. Vs. Monitoring Committee of Reliance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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