TMI Blog2022 (5) TMI 1474X X X X Extracts X X X X X X X X Extracts X X X X ..... -lenders. This clause was apparently incorporated with an intent to save the guarantor from being harassed at the hands of unscrupulous individual lender. In the matter in hand, there were other banks which extended loan facilities to corporate debtor apart from the applicant bank although it was having major share in comparison to other co-lenders. The security agreement clearly lays down Lenders shall mean collectively the refinancing lenders and the RTL facility Lenders - word lender herein cannot be interpreted to be used as plural, once all the lenders to be taken as collectively. Hence, all the bankers must decide together to revoke the guarantee. In the absence of the same, an individual Beneficiary (such as the Applicant Bank) was under obligation to take consent of co-lenders/beneficiaries. No doubt, the deed of personal Guarantee has been executed by Mr. Manoj Gaur, (the Respondent) in favour of IDBI Trusteeship Services Limited as the Security Trustee, but we are unable to agree with the contention raised by the Applicant Bank that IDBI can act on behalf of all the Lenders without obtaining their formal consent and it can act in place of the Security Trustee. The in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany and the total principal loan amount granted to the Corporate Debtor by the Applicant Bank was reduced to INR 3750,00,00,000 (Three thousand seven hundred and fifty crores). 3. Further under Security Trustee Agreement dated 30.04.2015 executed amongst, inter alia, the Applicant Bank and the Corporate Debtor, IDBI Trusteeship Service Limited was appointed to act as Trustee for and on behalf of the Applicant Bank and other lenders and to hold the security to be created pursuant to the Financing Documents. 4. In respect of these loan facilities, the Respondent Mr. Manoj Gaur had executed a Deed of Guarantee dated 25.05.2015 wherein the personal guarantor has irrevocably and unconditionally guaranteed repayment of the aforesaid facilities availed by the Corporate Debtor. The Corporate Debtor committed default in repayment of dues to the Applicant Bank. Accordingly, the loan account of the Corporate Debtor was classified as NPA by the Applicant Bank on 31.03.2016. Further, the Company petition-(CP-IB-77/ALD/2017) was filed by the Applicant Bank against the Corporate Debtor under Section 7 of the IBC and by order dated 9th August, 2017, the application was admitted and CIRP was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ground that further step under Section 99 of the Code can be taken only after first deciding upon the locus of Applicant to file the Petition. Therefore, this Adjudicating Authority heard the arguments for and against the IA No. 782/2022 together with the main Application CP-IB-29/2022. 9. We have heard Ld. Counsels for both the sides at length and perused the record thoroughly. 10. Ld. Counsel for the respondent contended that the personal guarantor, had executed the deed of personal guarantee on 25.05.2015 in favour of IDBI Trusteeship Services Limited (the Security Trustee). The Security Trustee entered into the Personal Guarantee pursuant to the powers conferred to the Security Trustee collectively by all the JIL Lenders under a Security Trustee Agreement dated 30.04.2015. The Security Trustee and the Applicant Bank are independent entities and the Applicant Bank is not a signatory to the deed of personal guarantee executed by Mr. Manoj Gaur as the Guarantor of JIL with IDBI Trusteeship Limited (As the security trustee) dated May 25, 2015. There is no privity of contract between the Applicant and the Respondent in the personal guarantee which can only be enforced by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee shall seek clarifications therefore from such Lenders and/or the Lenders' Agent giving such instructions and in the absence of unanimous instructions the Security Trustee shall not be obliged to act on such instructions. 14. Another important para to which our attention has been attracted is para 8.5 Performance by the Lenders of the Security Trusteeship Agreement. The same is quoted below: Para 8.5 Performance by the Lenders Any duty or obligation of the Security Trustee hereunder or under any Security Document or other agreement, document or instrument contemplated herein or therein may be performed by the Lenders and any such performance shall not be construed as a revocation of the trusts or agency created thereby. 15. Further the definition of 'Lenders' as per Security Trustee Agreement is as follows: Lenders shall mean collectively the refinancing lenders and the RTL facility Lenders (Vol-IV, Pg-560). 16. The deed of personal guarantee is given at pages 598-617 (Annexure A-12 of Volume-IV of the application). Perusal of the same shows that the deed of personal guarantee is executed by Mr. Manoj Gaur as Guarantor for JIL(as Borrower) in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erty shall not be considered as part of the assets of the Security Trustee and shall not, in the case of bankruptcy or liquidation of the Security Trustee, be considered as its assets and shall not be available to the Liquidator, bankruptcy trustee or other creditor of the Security Trustee and such monies and properties shall be wholly excluded from the assets of the Security Trustee in such bankruptcy or liquidation. 4.8 Action of the Security Trustee The Security Trustee shall only undertake an enforcement action that it considers to be in the best interests of all the Lenders, acting reasonably. 18. As per the Respondent, all the Lenders have to act together through the Security Trustee whereas no other bank has filed application under Section 95. As per the Security Trustee Agreement, one lender cannot act alone. Further the Applicant Bank has tried to rely to clause 1.2 of the common loan agreement dated 30.04.2015 (Vol-II pg-193) which states that: 1.2 principal of Interpretation. (d) the words importing singular shall include plural and vice versa . 19. Ld. Counsel for the Applicant Bank although argued that IDBI Bank has got a big share i.e. 43% of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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