TMI Blog2022 (6) TMI 1317X X X X Extracts X X X X X X X X Extracts X X X X ..... shares (including Applicant in IA 257/2021) to pay an amount of Rs. 9131 crores with interest of Rs. 11.80 crore within 5 days. Neither the Applicants had denied in its rejoinder nor placed any document to establish that the Applicants had made any payment to any of the lenders against whom guarantee has been given under Deed of Guarantee/Deed of personal Guarantee nor the Applicants has placed on record any document showing sale of equity shares pledged with the lenders. Thus, it is established that the Applicants had not suffered any loss due to enforcement of guarantee by the creditors since 2018. It is a settled law that liability of surety is co-extensive with that of the principal debtor. In case the creditor enforces its right against the guarantor and the guarantor disburses due amount to the creditor, such disbursement, amounts to repayment of loan on behalf of the principal debtor and the guarantor steps into the shoes of the creditor - if there is no encashment of debt on account of enforcement of guarantee, it cannot be said that there is disbursement of debt to the Corporate Debtor, which is an essential condition to fall under the definition of financial debt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Debtor and grant the Applicant voting share proportionate to the said claim together with all consequential benefits arising therefrom; d) In the alternative to prayer clause (b) and/or (c), this Court be pleased to order and direct the terms of resolution finalized by the Committee of Creditors should mandate that the Corporate Debtor shall always be due and liable to pay the Applicants every amount recovered from the Applicants by the lenders under the Guarantees executed by them. e) This Hon'ble Tribunal be pleased to order and direct that Article 137 of the Articles of Association of the Corporate Debtor be not altered, amended in any manner whatsoever until the entire liability under the Applicant's Guarantee is marked satisfied by the beneficiaries. f) That pending the hearing and final disposal of the present Application, this Hon'ble Tribunal be pleased to order and restrain the Respondent from conducting any further meetings of the Committee of Creditors of the Corporate Debtor, for any purpose whatsoever. g) For such further and other reliefs as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng ('CDR') package and informed that to facilitate the execution of Master Restructuring Agreement (MRA) and implementation of the CDR package, the Reliance group would arrange the stipulated minimum promoters' contribution as per RBI/CDR Guidelines of Rs. 170 crores. The Consortium lenders and SKIL Group in capacity as then promoters of the Corporate Debtor had executed a Master Restructuring Agreement on 30.03.2015. Following that the erstwhile promoter had furnished following securities in favour of the lenders of the Corporate Debtor: S.No. Security Provider Nature of Security provided 1 Nikhil Gandhi (Applicant in IA 423/2021) Personal Guarantee vide Deed of Personal Guarantee dated 31.03.2015. 2 Bhavesh Gandhi (Applicant in IA 427/2021) Personal Guarantee vide Deed of Personal Guarantee dated 31.03.2015. 3 SKIL Infrastructure Ltd. (Applicant in IA 257/2021) Corporate Guarantee vide Deed of Corporate Guarantee dated 30.03.2015. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Urban Development Corporation Ltd. and IDBI Bank Ltd. had initiated separate proceedings under Recovery of Debt and Bankruptcy Act, 1993 against the Corporate Debtor and the Applicants [being guarantors] for recovery of amount of Rs. 144,87,19,366/- and Rs. 90,37,73,65,711.46/- as on 10.08.2017 and 31.07.2018 respectively. Also, the Reliance Commercial Finance Ltd. (a company of Anil Ambani's Reliance Group) had initiated proceeding under Section 7 of the IB Code, 2016 against the SKIL Infrastructure Ltd. (Applicant in IA 257/2021) under the Code before NCLT, Mumbai Bench through CP(IB) No. 2104 of 2019. vi) Thus, SKIL Infrastructure Ltd. Applicant in IA No. 257/2021 is claiming as financial creditor for Rs. 9625,83,61,954/- and Mr. Nikhil Gandhi and Mr. Bhavesh Gandhi Applicants in IA 423/2021 and IA 427/2021 has a financial claim of Rs. 9182,60,85,077/- each. The claims in Form C have been filed by all three above Applicants vide letters dated 28.02.2020. vii) The IRP through email dated 12.03.2020 informed that the Form-C is not duly stamped and also asked all Applicants to provide financial statements showing that either the debt has been disbursed by the G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order from the competent court directing the Applicant to pay the amount under the guarantee. ix) The Applicants are entitled for following claim amount: a) Applicant in IA 257/2021: Rs. 417,65,25,349/- with interest at the rate of 16% p.a. from the date of invocation of shares pledged on behalf of Corporate Debtor till realization. Rs. 90,00,00,000/- on account of malafide proceeding initiated by Reliance Commercial Finance Ltd. before NCLT, Mumbai Bench. Rs. 2,84,71,326/- against re-imbursement expenses. b) Applicants in IA 423/2021 IA 427/2021: Rs. 9182,60,85,077/- each with interest at the rate of 16% p.a. from the date of invocation of shares pledged on behalf of Corporate Debtor till realization. x) The consortium lenders will pursue the guarantors for the balance amount of the loan that has not been recovered from the Corporate Debtor and the guarantors would then have to bring the Corporate Debtor back to the Adjudicating Authority for resolution. It cannot be said that the liabilities and obligations of the Corporate Debtor to its Guarantors are not debts and guarantors are no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Applicant in IA 257/2021 had agreed that as under: Each Pledger represents to, and undertakes with the Security Trustee, on behalf of itself that the Pledgor have not taken and will not take any security in respect of their liability under this Agreement from any Person. Until the Final Settlement Date, the Pledgors shall not exercise any claim in the insolvency or liquidation of the Borrower or any other Person in competition with the Finance Parties. If the Pledgors receive any payment in contravention of the provisions of this Agreement and/or the other CDR Documents, the Pledgors shall hold all such amounts in trust and as continuing security for the benefit of the Security Trustee and any such funds shall be segregated from the other funds of the Pledgors and shall be forthwith delivered to the Security Trustee in the same form as so received (with any necessary endorsement) and shall form part of the Collateral. vi) The Applicant has failed to submit any of the documents as required under sub regulations (2) of Regulations 8 of CIRP Regulations. vii) The amount claimed by the Applicant in IA 257/2021 on account of proceedings initiated against it an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nders and the Principal Corporate Debtor can compromise the width and amplitude of protection and legal right acquired under Section 134 and Section 145 of the Indian Contract Act, 1872. iii) Section 5(8)(i) of the Code defines a financial debt to mean the amount of any liability in respect of the Guarantee or indemnity for any of the items referred to in sub-clauses (a) to (h). The liability of indemnity attaches to the Corporate Debtor immediately upon the Applicant signing the Deed of Guarantee. In the present case, the liability of the Corporate Debtor to honour its indemnity exists as much today. The Hon'ble National Company Law Appellant Tribunal in Andhra Bank vs. F.M. Hammerle Textile Ltd. (CA(AT) (Insolvency) No. 61 of 2018) dated 13.07.2018 observed as under: 9. It is not necessary that all the claims as are submitted by the Creditor should be a claim matured on the date of initiation of Resolution Process/admission, even in respect of debt, which is due in future on its maturity, the 'Financial Creditor' or 'Operational Creditor' or 'Secured Creditor' or 'Unsecured Creditor' can file such claim. Therefore, the defini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EDULE 3 SHAREHOLDING PATTERN OF THE COMPANY PART A Sale Share Details Name of Founder Promoter Number of Identified Sale Shares SKIL Infrastructure Limited 13,00,00,000 SKIL Shipyard Holding Pvt. Limited Name of Founder Promoter Maximum Number of Top up Sale Shares SKIL Infrastructure Limited 5,47,87,774 Grevek Investments Finance Private Limited PART B Pre Transaction Shareholding Structure Name of Shareholder Number of Equity Shares Percentage of Holding SKIL Infrastructure Limited 25,03,73,648 34.01% SKIL Shipyard Holding Pvt. Limited 3,83,77,686 5.21% Grevek Investments Finance Private Limited 2,23,49,494 3.04% Public 42,51,05,441 57.74% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asonably practicable and not later than 3 (three) months from the Completion Date. In the interim, the Acquirer and the Company agree to promptly reimburse and indemnify on demand the Founder Promoter for any loss suffered by the Founder Promoters on account of enforcement of any Disclosed Funder Promoter Guarantees or any other guarantors as Disclosed to the Acquirer provided by them to the Lenders (in respect of a loan/facility in favour of the Company and/or its subsidiaries). 13. It is inferred from the above clause that the Corporate Debtor is obliged to reimburse and indemnify the founder promoter (including the Applicants herein) on fulfilment of two conditions, first, enforcement of guarantee and second due to enforcement of such guarantee any loss is suffered by the founder promoters. In an instant matter, Vistra ITCL (India) Ltd. formerly known as IL FS Trust Company Limited through demand certificate dated 17.03.2018 to the Applicants had demanded to pay an amount of Rs. 9147.88 crore under the Deed of Guarantee/Deed of Personal Guarantee, within 3(three) days. Also, through letter dated 21.03.2018, Vistra ITCL called upon the pledgors of 14,51,04,995 shares (includi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto in connection with protection against or benefit from fluctuation in any rate or price and for calculating the value of any derivative transaction, only the market value of such transaction shall be taken into account; (h) any counter-indemnity obligation in respect of a guarantee, indemnity, bond, documentary letter of credit or any other instrument issued by a bank or financial institution; (i) the amount of any liability in respect of any of the guarantee or indemnity for any of the items referred to in sub-clauses (a) to (h) of this clause; The essential condition for a claim to fall under the category of financial debt is that there must be a disbursement debt against a consideration for time value of money and it may fall under any of the category mentioned in (a) to (i) of Section 5(8). 15. As per purchase agreement dated 04.03.2015, as discussed above the Applicant's right to be reimbursed/indemnified will not accrue unless a loss has been suffered. As per clause 5.10 of the purchase agreement which is discussed above the Applicants will incur loss only on encashment of guarantees by the respective creditors. It is a settled law that liab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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