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TMI Blog2023 (8) TMI 860X X X X Extracts X X X X X X X X Extracts X X X X ..... or and allowed invocation of the Bank Guarantee("BG") during the moratorium period in force under section 14 of IBC. 2. Briefly, it is the case of the Appellant that the Corporate Debtor was setting up a power project of 2x660 MW in Wardha, Maharashtra and in this connection, he had to import materials relating to the Boiler, Turbine, Generator from China and the project was accorded an Importer Exporter Code (IEC) No. 0910024219 by the Directorate General of Foreign Trade, Government of India. The Appellant has further stated that the project was accorded status of Provisional Mega Power Project and was allowed by the Ministry of Power to import the said equipment at zero import duty subject to the condition that the corporate debtor was required to furnish security in the form of Fixed Deposit Receipt ("FDR") for an amount equal to the customs/excise duty payable valid for a term of 36 months, which was extended to 120 months, within which the project company had to execute long term Power Purchase Agreement (PPA). It was also stipulated that after obtaining the Final Mega Power Project status within the stipulated period, the securities submitted in the form of Bank Guarantee ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rehouse in Wardha. The balance material aggregating to 24,332 MT was under the purview of Deputy Commissioner, Customs, Raigad and out of this 11877 MT was released after payment of full duty by the corporate debtor under the provisions of the Mega Power Certificate. Later, balance 12435 MT were released after corporate debtor gave securities in the Form of FDs or BG. The Appellant has further stated that the R-2 filed his claim after a delay of four months from the last date of receipt of claims, but did not file any application for condonation of delay before Learned NCLT, and hence, no claim of R-2 stood admitted by the RP. 6. In relation to R-3/Assistant Commissioner of Customs, Mumbai, the Appellant has stated that out of the materials imported, 7069 MT pertaining to Mumbai Customs was auctioned by Mumbai Port Trust on 14.5.2019 due to non-payment of wharfage and demurrage charges. The balance 12,709 MT of material was released and shifted to the plant site. He has added that for the balance material, FDs and BGs were furnished by the corporate debtor in favour of Deputy Commissioner of Customs, Mumbai for release and lifting of materials amounting to 12,617 MT by the corpora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s from Nhava Sheva Port and the Customs Private Bonded Warehouse at Wardha, should be returned to the corporate debtor/liquidator. 10. The Learned Counsel for Appellant has argued that the corporate debtor is now in liquidation and R-1 has filed claim in the CIRP, which was admitted. In addition, he has submitted that R-2 filed his claim after a delay of four months from the last date of receipt of claim and therefore, his claim was rejected since there was no application for condonation of delay filed before the Adjudicating authority, which was allowed and also that R-3 did not file any claim before the Appellant. He has argued that once opportunity was provided to the Respondents to file their claims, these claims/dues will be considered in the light of section 53 of the IBC during the liquidation, and therefore, the BGs and FDRs that were provided by the corporate debtor should be returned so that these amounts could be used while for the benefit of all the stakeholders, including the Respondents, while paying of their dues. He has further argued that the objective of the IBC is maximization of value of the corporate debtor and therefore, with the return of BGs and FDRs held b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the Respondents cannot claim any amount covered under FDRs and BGs in term of section 33(5) of the IBC and further in the definition of 'property' as defined in section 3(27) of the IBC, which includes money, goods actionable claims, land and every description of property situated in India or outside India and every description of interest including present or future or vested or contingent interest arising out of, or incidental to, property. Therefore, the Adjudicating Authority should have directed return of FDRs and BGs (which were issued in lieu of FDRs) to enable the Liquidator to include the same in liquidation state. 13. The Learned Counsel for Appellant also referred to the amendment in section 14 of the IBC i.e. section 14(3)(b), which is applicable only in a case where guarantee is given at the instance of the third party or promoter director on behalf of the corporate debtor and not by the corporate debtor itself. The Learned Counsel for Appellant has reiterated that R-1 has filed its claim before the Liquidator and therefore, is now not entitled for return of BG amount and could only avail whatever would be the distributed amount consequent to its claim under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above decision of Hon'ble Supreme Court in the matter of State Bank of India vs. V. Ramakrishnan & Anr. (supra) has been noticed in the judgment passed by a coordinate bench of NCLAT in the matter of Bharat Aluminium Co. Ltd. vs. M/s. J.P. Engineers Pvt. Ltd. & Anr.[CA(AT)(Insolvency) No. 759 of 2020]. The said judgment of NCLAT observes in paragraphs 32-37 as follows:- "32. Hon'ble Supreme Court in the case V Ramakrishnan (Supra) held that sub-section 3(b) of Section 14 amendment being clarificatory in nature and is retrospective. Section 14 of the IBC refers only to debts due by Corporate Debtors, who are limited liability companies, and it is clear that the vast majority of the cases, personal guarantees are given by Directors who are not in management of the companies. The object of the IBC is not allowed such guarantors to escape from an independent and co-extensive liability to pay off the entire outstanding debt, which is why section 14 of the IBC is not applied to them. Also held that contract of guarantee is between the creditor and principal debtor and the surety whereunder the creditor has a remedy in relation to his debt against both the principal debtor and surety. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o recover such amounts, which should be claimed as part of the resolution process under IBC by the debtor. This judgment is distinguished on the basis that in the present case, the customs authorities are not recovering any amount on the basis of assessed customs/import duty, but the issue in the appeal is about invocation of the BG and FDRs. 19. Therefore, in the light of the judgment of Hon'ble Supreme Court in the matter of State Bank of India vs. V. Ramakrishnan & Anr. (supra) and of this Tribunal in the matter of Bharat Aluminium Co. Ltd. vs. M/s. J.P. Engineers Pvt. Ltd. & Anr.(supra), it is clear that section 14(3)(b) allows for invocation of BGs. 20. The Appellant has also raised the issue of return of FDRs and submitted that the Impugned Order of Learned NCLT does not adjudicate on relief sought with respect to the FDRs. In this connection, we are of the view that since Learned NCLT did not pass any explicit order regarding return of FDRs, it is presumed that such prayer that was made by the Liquidator in IA No. 636 of 2022 in CP (IB) No. 529/7/HDB/2018 was not acceded to and consequently rejected. 21. In view of the above stated position, we are of the view that the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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