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2021 (3) TMI 580 - Tri - Insolvency and BankruptcySeeking to declare the decision of the resolution professional of the Corporate Debtor for recognizing the Indirect Lenders as the Financial Creditors of the Corporate Debtor as null and void - seeking to de-recognize / declassify / delete the Indirect Lenders as Financial Creditors of the Corporate Debtor - seeking to prepare a reconstituted committee of creditors comprising of Financial Creditors of the Corporate Debtor as mandated under Section 21 of the IB Code, 2016 - seeking to perform his duties in accordance with the relevant provisions and regulation of the IB Code, 2016 - seeking to defer any meeting of committee of creditors of the Corporate Debtor - In the event, any meeting of committee of creditors of the Corporate Debtor is held, seeking to keep the resolutions passed in the said meeting, in abeyance till the outcome of the present application. HELD THAT -The contention of the Applicant that there is no disbursal of any amount or loan to the Corporate Debtor and hence there is no financial debt is untenable. Here the loans were disbursed to RCOM entities and the Corporate Debtor had given guarantee in favour of the Respondents - When there is a Financial Debt due, irrespective of the fact that the same is defaulted or not, a claim can be made in the CIRP proceedings. For making a claim under CIRP, it is not required that the said debt should have been defaulted. We accept the contention of the Respondents that they were within their rights in filing the claim before the IRP as Financial Creditors. In this regard, the reliance of the Applicant on the judgement of SWISS RIBBONS PVT. LTD. AND ANR. VERSUS UNION OF INDIA AND ORS. 2019 (1) TMI 1508 - SUPREME COURT is totally misplaced since Swiss Ribbons deals with the debt and default for triggering CIRP process and the issue of limitation. Neither the Section of law nor the Regulation says that the claim of a debt can be made only when there is a default. The debt and default would be a sine qua non for the admission of a Section 7 or Section 9 or Section 10 petition. But for filing claim before IRP, mere debt is sufficient and it would not be necessary that the debt has been defaulted. In view of this, the submission of the Counsel for the Applicant that the claimant must establish not only the existence of the financial debt but also that the same is due and unpaid which means that the debt should have been defaulted, is untenable - Section 2(11) of the Code provides that debt means a liability or obligation in respect of a claim which is due from any person and includes financial debt and operational debt. Here, in this case, the Corporate Debtor by the DoH guaranteed the Respondents to pay the deficiency or shortfall, if any, towards the debt after realisation of the hypothecated assets. Admittedly, hypothecated assets were not sold in this case and hence the whole debt is due to the Respondents and the Respondents as Financial Creditors as already indicated by us are entitled to file a claim before the IRP. The IRP has rightly admitted the claim of Respondents as Financial Creditor. The contention of the Applicant that the said debt shall be in default is not applicable as far as filing of the claim is concerned, however, in view of the fact that CIRP has been initiated against the Corporate Debtor, Corporate Debtor as a guarantor is liable to pay the debts and the Respondents are right in filing a claim as a Financial Creditor. Filing a claim in CIRP cannot be construed as enforcement of security interest. Before the enforcement of security interest by the Security Trustee, CIRP intervened and the Creditors are entitled to file Form C before the IRP. It is to be noted that in Form C also the claimant has to give the name of the Financial Creditor, amount of claim, how and when the debt incurred, etc. A Security Trustee cannot become a Financial Creditor to file a claim before the IRP and we feel that on going through the contents of Form C even in cases when a Security Trustee is appointed there is no bar for a Financial Creditor to file a claim. The contention of the Applicant that the beneficiary can enforce his right only when the Trustee has failed to discharge his duties or otherwise cannot be accepted for the reason that there is no question of enforcement of right by the Trustee since CIRP has intervened.
Issues Involved:
1. Recognition of Indirect Lenders as Financial Creditors. 2. Validity of the Deed of Hypothecation as a guarantee. 3. Admissibility of claims without default. 4. Rights of individual lenders to file claims. Issue-wise Analysis: 1. Recognition of Indirect Lenders as Financial Creditors: The Applicant, a Financial Creditor of Reliance Infratel Limited (RITL), challenged the decision of the Resolution Professional (RP) to recognize certain indirect lenders (R2 to R5) as Financial Creditors of the Corporate Debtor. The Applicant argued that these lenders had not disbursed any money to the Corporate Debtor and were only creditors of RCOM entities. The RP and respondents contended that the Deed of Hypothecation (DoH) executed by the Corporate Debtor included a covenant to pay and an undertaking to cover any shortfall, which constituted a guarantee under Section 126 of the Indian Contract Act, 1872. The Tribunal held that the covenant to pay in the DoH amounted to a guarantee, thus classifying the indirect lenders as Financial Creditors under Section 5(8) of the Insolvency and Bankruptcy Code (IBC). 2. Validity of the Deed of Hypothecation as a guarantee: The Applicant argued that the DoH did not constitute a guarantee as defined under Section 126 of the Indian Contract Act, 1872. The Tribunal examined Clause 5(iii) of the DoH, which stated that the Corporate Debtor agreed to pay any shortfall or deficiency after the sale of hypothecated assets. The Tribunal concluded that this clause constituted a guarantee, as it obligated the Corporate Debtor to cover any shortfall, thereby meeting the requirements of Section 126. The Tribunal emphasized that the nomenclature of the document (DoH) was not determinative of its legal nature. 3. Admissibility of claims without default: The Applicant contended that for a claim to be admitted in the Corporate Insolvency Resolution Process (CIRP), the debt must be in default. The RP and respondents argued that the existence of a debt was sufficient for filing a claim, irrespective of default. The Tribunal agreed with the respondents, stating that neither the IBC nor the regulations required a debt to be in default for a claim to be admitted. The Tribunal referenced Section 18 of the IBC and relevant regulations, which mandate the Interim Resolution Professional (IRP) to collate all claims submitted by creditors. The Tribunal held that the RP had rightly admitted the claims of the respondents as Financial Creditors. 4. Rights of individual lenders to file claims: The Applicant argued that the individual lenders did not have the legal title to file claims and that only the Security Trustee had such rights. The Tribunal referred to the judgment in Essar Steel v. Gramercy Emerging Market Fund, which allowed creditor beneficiaries to file claims directly. The Tribunal held that the respondents, as lenders/creditors, were entitled to file Form C as required under Regulation 8 of the CIRP Regulations. The Tribunal noted that filing a claim in CIRP could not be construed as enforcement of security interest, and the Security Trustee could not be considered a Financial Creditor for filing claims. Conclusion: The Tribunal dismissed the Applicant's challenge, affirming the RP's decision to admit the claims of the indirect lenders (R2 to R5) as Financial Creditors of the Corporate Debtor. The Tribunal held that the DoH constituted a guarantee, the existence of debt was sufficient for filing claims in CIRP, and individual lenders had the right to file claims directly.
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