2022 (7) TMI 1492 - AT - Insolvency and Bankruptcy

Dismissal of application filed under Section 7 of IBC - guarantee given to the Financial Creditor or not - whether only the securities were pledged by the Pledge Agreement dated 27.02.2015? - HELD THAT - It is apparent from the facts of the case that when it was decided by the Financial Creditor to extend loan to the Borrower a Facility Agreement was executed in which security package was given as contained in the terms and conditions. The only personal guarantee in the Facility Agreement is that of Manoj Kumar Agarwal and none else but it appears that this security was not found sufficient by the Financial Creditor, therefore, on the same date an Unattested Pledge Agreement was also executed in which the present Respondent i.e. Mahananda Suppliers Limited and Sungrowth Share and Stocks Limited came forward to support the Borrower i.e. Adhunik Meghalaya Steels Private Limited and all of them pledged their security which has been mentioned in the Schedule appended with the Agreement and made themselves liable to pay the dues of the Financial Creditor jointly and severally, meaning thereby giving an option to the Financial Creditor to initiate action against the security of any of the pledgor but in no case the pledgor can be termed as a principal debtor for the purpose of recovery of the entire amount that too by resorting to the filing of the application under Section 7 of the Code. There are no error in the findings recorded by the Adjudicating Authority - the present appeal is totally without any merit and deserves to be dismissed - appeal dismissed.

Summary

Issues Involved:
1. Interpretation of Clause 5.1(g) of the Pledge Agreement.
2. Determination of whether the Pledge Agreement constitutes a guarantee.
3. Applicability of Section 7 of the Insolvency and Bankruptcy Code, 2016.

Issue-Wise Detailed Analysis:

1. Interpretation of Clause 5.1(g) of the Pledge Agreement:
The Appellant argued that Clause 5.1(g) of the Pledge Agreement implies a guarantee extended by the pledgors to the Financial Creditor, making them jointly and severally liable as principal debtors. The Adjudicating Authority, however, found that the agreement was primarily a pledge agreement, and the intention of the parties was clear in that it was meant to pledge shares as security rather than to act as a guarantee. The Authority emphasized that the agreement should not be interpreted merely for the convenience of the Financial Creditor and that there was no explicit or implicit guarantee provided by the pledgors, except for the personal guarantee of Mr. Manoj Kumar Agarwal.

2. Determination of whether the Pledge Agreement constitutes a guarantee:
The Appellant contended that the Pledge Agreement was a hybrid agreement, serving both as a pledge and a guarantee. The Adjudicating Authority disagreed, stating that the agreement was clearly an agreement of pledge, not a guarantee. The Authority noted that the Financial Creditor repeatedly referred to the agreement as an "Agreement of Pledge and Guarantee" without any basis for such a claim. The Authority pointed out that if there had been an intention to include the pledgor as a guarantor, a similar guarantee agreement would have been executed. The Authority concluded that the present application under Section 7 could not proceed against the Corporate Debtor, who was merely a pledgor of shares and not a guarantor.

3. Applicability of Section 7 of the Insolvency and Bankruptcy Code, 2016:
The Appellant filed an application under Section 7 of the Insolvency and Bankruptcy Code, 2016, seeking initiation of Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor. The Adjudicating Authority dismissed the application, stating that the Corporate Debtor, being only a pledgor of shares and not having availed any financial benefit from the Financial Creditor or signed any document as a guarantor, could not be proceeded against under Section 7. The Authority noted that the Financial Creditor had not taken any steps to recover its dues from the principal borrower or the sole principal guarantor, Mr. Manoj Kumar Agarwal, and had only initiated action against the pledgor of shares. The Authority concluded that the pledgor could not be termed as a Corporate Debtor and did not owe any debt to the Financial Creditor under the Pledge Agreement.

Conclusion:
The National Company Law Appellate Tribunal (NCLAT) upheld the Adjudicating Authority's decision, finding no error in the interpretation of the agreements or the findings that the Pledge Agreement did not constitute a guarantee. The appeal was dismissed, affirming that the pledgor of shares could not be considered a Corporate Debtor under Section 7 of the Insolvency and Bankruptcy Code, 2016. The appeal was dismissed without any order as to costs.