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TMI Blog2022 (10) TMI 586X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 02.03.2021 passed by Learned Adjudicating Authority (National Company Law Tribunal, Mumbai Bench, Court-I) in IA1960/2019, in C.P. (IB) No. 1385/MB/2017, by which Order, the Adjudicating Authority has partly allowed the IA filed by 'M/s. Doha Bank QPSC'/the first Respondent seeking to delete the Appellant and Respondents 3 to 7 as 'Financial Creditors' of Reliance Infratel Limited ('RITL'), hereinafter referred to as the 'Corporate Debtor'. 2. Facts in brief, are that vide Order dated 15.05.2018, CIRP was initiated against the 'Corporate Debtor' and Mr. Manish Dhirajlal Kaneria was appointed as the IRP on 18.05.2018. Subsequent to the withdrawal of the Appeals before this Tribunal, a fresh Public Announcement was issued on 07.05.2019, inviting claims and the CoC was constituted on 24.05.2019, with the following 'Financial Creditors' as Members: Sr. No. Name of Creditors Amount Claimed Amount Admitted (Provisional) Amount under Verification Voting share 1. State Bank of India 3628.68 3516.37 112.31 36% 2. Bank of India 1064.82 979.17 85.65 10% 3. UCO Bank 952.81 952.81 - 10% 4. Standard Chartered Bank 753.14 753.14 - 8% 5. Syndicate Bank 1225.18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Facility Agreement dated 19.03.2010 and despite repeated requests neither the Appellant, Respondents 3 to 7 nor the 'Corporate Debtor' provided copies of the said Guarantees to M/s. Doha Bank. 5. M/s. Doha Bank preferred I.A. 1960/2019 under Section 60(5) of the Code, seeking a direction to the RP to reconstitute the CoC by deleting 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to as 'The Act'), carves out an exception for Companies providing 'Infrastructure Facilities'. In Schedule VI to the Act 'Infrastructure Facilities' is defined to include Companies engaged in telecommunications projects and activities, which are exempted from the provisions of Section 186 of the Act. As RITL is a 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 proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any such purported Guarantees, which are in contravention with Section 186(2) read with Section 186(3) of the Act. * By creating these Guarantees, the 'Corporate Debtor' has sought to create a preference in favour of the Pre-Existing Lenders of his holding/parent Companies, eclipsing the bona fide rights and 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 22.12.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts of the 'Corporate Debtor' for the FY 2016-17 & 2017-18 or produced before the Adjudicating Authority. 9. The second Respondent/RP Mr. Anish Nanavaty filed Reply Affidavit stating that the admission of the claims of the Appellant and the other banks recognising them as Members of the CoC was 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 'relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Therefore, the contention of the Learned Sr. Counsel for the Appellant that having regard to the Order passed by the Adjudicating Authority in IA3055/2019, the SBI Consortium ought to have been permitted to continue to be recognised as 'Financial Creditors' of RITL cannot be sustained, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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