TMI Blog2023 (3) TMI 647X X X X Extracts X X X X X X X X Extracts X X X X ..... lace i.e. has executed (a guarantee) whereas letter dated 03.06.2015 says that in case of failure on the part of POGGENAMP to pay to POSCO-IPPC the said outstanding dues, as mentioned herein, we (the undersigned) shall provide/execute Personal Guarantees in our respective individual capacities in favour of POSCO-IPPC within 30 days from the date of such failure . A close scrutiny of the aforesaid language used in the letter dated 03.06.2015 indicates that Respondent No. 2 had not executed any guarantee rather it had offered to execute a guarantee in case of the happening of a particular event. There is no other document placed on record besides the letter dated 03.06.2015 to clinch this issue that personal guarantee had already been executed by Respondent No. 2 at the time when they had submitted their resolution plan and that guarantee had been invoked by the creditor and the amount remained unpaid in full or part, therefore, was ineligible in view of Section 29A(h) of the Code. There are no substance in the arguments raised by Counsel for the Appellant for the purposes of reversing the order in the application which has been allowed by the impugned order. After perusal o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication was admitted on 22.01.2020 by the Adjudicating Authority (National Company Law Tribunal, Ahmadabad Bench) and an Interim Resolution Professional (IRP) was appointed. However, vide order dated 03.06.2020 the IRP was replaced by the RP. 2. The RP published Form-G to invite Expression of Interest (EOI) to submit the resolution plans and on 13.07.2020 a provisional list of Proposed Resolution Applicants (PRAs) was prepared and five days time was provided to raise any objection till 18.07.2020. The RP published the final list of PRAs on 28.07.2020 for submission of resolution plan which included the name of the erstwhile promoters of the Corporate Debtor. It is alleged that the Appellant, vide its letter dated 30.07.2020, raised objection about the ineligibility of the erstwhile promoters on the ground that they had given personal guarantee for the Corporate Debtor but the RP, vide email dated 12.08.2020, informed that Section 29A(h) of the Code do not apply in view of the fact that the Corporate Debtor is registered as MSME under MSME Act, 2006. It is alleged that the Appellant filed an application I.A. No. 514 of 2020 on 14.08.2020 for seeking a direction that RP cannot a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng orders Accordingly, I.A. No. 58 of 2021 in CP (IB) No. 268 of 2018 is allowed and stands disposed of in terms of the above directions. 5. The present appeal has thus been filed by the Appellant to challenge the order passed in I.A. No. 145 of 2021 because if this appeal is allowed and it is held that the SRA was not eligible then the resolution plan submitted by the said SRA would automatically become redundant. 6. The main argument of the Appellant in this case is that the SRA was not eligible in view of Section 29A(h) of the Code. 7. Section 29A(h) is reproduced as under: - 29A(h) has executed a guarantee in favour of a creditor in respect of a corporate debtor against which an application for insolvency resolution made by such creditor has been admitted under this Code and such guarantee has been invoked by the creditor and remains unpaid in full or part 8. According to the Appellant, the SRA had given a guarantee dated 03.06.2015. 9. The said letter dated 03.06.2015 is also reproduced as under: - Date: 03 June,2015 To, THE BOARD OF DIRECTORS POSCO-INDIA PUNE PROCESSING CENTER PRIVATE LIMITED Plot No.A-9, Floriculture Park ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er is being issued as the Assurance / Promise to pay the said Outstanding Dues of POSCO-IPPC by POGGEN-AMP. Thank you For POGGEN-AMP NAGARSHETH POWERTRONICS PRIVATE LIMITED 10. The aforesaid letter was written by Gauttam Nagarsheth, Managing Director, Gaurang Nagarsheth, Director and Parshva Nagarsheth, Director. This issue has been hammered a lot by the Appellant as it goes to the root of the case because if it is held that the Respondent had given their personal guarantee in favour of the creditor on behalf of the Corporate Debtor on 03.06.2015 then their case would be covered by Section 29A(h) of the Code and they would be held to be ineligible to submit a resolution plan. 11. On the other hand, Counsel for the Respondent No. 2 has submitted that the RP has declared that it has received expression of interest from two interested parties i.e. PRAs Gauttam Nagarsheth and Gaurang Nagarsheth as one party and the Appellant as the other. It was made clear that any objection to the inclusion or exclusion of a prospective resolution applicant in the provisional list may be made alongwith supporting documents within five days from the date of issue of the provisional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r does not discuss the letter dated 03.06.2015 or the provision of Section 29A(h) of the Code, therefore, there is no question of any finding which has been reviewed. 15. As regard res-judicata, it is submitted that the issue of guarantee was decided at the stage of admission whereas the case of the Respondent is that it was not a party, therefore, there is no question of any res-judicata. 16. After perusal of the record, we are satisfied that neither the issue of review nor res-judicata is made out on the facts and circumstances of the present case. Lastly, the Appellant has tried to argue that the Respondent No. 2 was not entitled to the benefit of Section 240A(1) of the Code whereas the case of Respondent No. 2 is that it is not seeking the benefit of Section 240A(1) and has neither claimed such a benefit. It is rather submitted that the letter of MSME was withdrawn. 17. As a matter of fact, from the perusal of the entire record, we have found that the whole case of the Appellant to dislodge the claim of the SRA revolves around the letter dated 03.06.2015 i.e. alleged personal guarantee, in order to attract the rigour of Section 29A(h) of the Code but since, Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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