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TMI Blog2018 (7) TMI 1896X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Debt’ as defined under the said provision. Admittedly, the ‘Corporate Debtor’ has counter-indemnity obligation in respect of guarantee given by it to the Appellant- ‘Andhra Bank’, we hold that Andhra Bank come within the definition of ‘Financial Creditor’ as defined under Sections 5(7) r/w (8) of ‘I&B Code’. The ‘Resolution Professional’ and the Adjudicating Authority both having failed to consider the aforesaid provisions of law, we set aside the impugned order dated 17th November 2017. Appeal allowed. - Company Appeal (AT) (Insolvency) No. 61 of 2018 - - - Dated:- 13-7-2018 - Mr S.J. Mukhopadhaya, Chairperson And Mr Bansi Lal Bhat, Member (Judicial) For The Appellant : Mr. N.P.Gaur, Advocate For The Respondent : Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urship, availability of credit and balance the interests of all the stakeholders including alteration in the priority of payment. 6. The Corporate Insolvency Resolution Process thereby is not a recovery proceeding and cannot be termed to be litigation between two adversaries. No dispute is settled in the process but steps for Corporate Insolvency Resolution Process are taken not only for maximizing of value of assets of such person and to promote the entrepreneurship, availability of credit and balance the interests of all the stakeholders. If a Resolution Applicant is successful on approval of Resolution Plan under Section 31, the Corporate Debtor instead of going through the rigor of liquidation process, continues, though the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional Creditor or Secured Creditor or Unsecured Creditor can file such claim. Therefore, the definition of Claim as defined under Section 3(6) is to be read along with Section 13 read with Section 15 of the I B Code . 10. Even a creditor may choose not to file claim, if not matured and may decide to submit claim on its maturity, after completion of the period of Moratorium , subject to survival of the Corporate Debtor . The debt which the Corporate Debtor owes for payment in future, if not taken into consideration in the Resolution Plan does not extinguish automatically and the creditors, including the Financial Creditor or Operational Creditor or Secured Creditor or Unsecured Creditor has rights to claim the same. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch other accounting standards as may be prescribed; ( e) receivables sold or discounted other than any receivables sold on nonrecourse basis; ( f) any amount raised under any other transaction, including any forward sale or purchase agreement, having the commercial effect of a borrowing; ( g) any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price and for calculating the value of any derivative transaction, only the market value of such transaction shall be taken into account; ( h) any counter-indemnity obligation in respect of a guarantee, indemnity, bond, documentary letter of credit or any other instrument issued by a bank or financial inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod during which the appeal was pending before this Appellate Tribunal i.e. from 20th February 2018 till today (13th July 2018) for the purpose of counting the period of 270 days, remit the matter with direction to the Resolution Professional to place Resolution Plan which has been cleared again before the Committee of Creditors , which will constitute two members i.e. State Bank of India and Andhra Bank. Both the members of the Committee of Creditors will fix a date preferably by the beginning of the next month and pass order in terms of Section 30(4) of the I B Code . 17. We make it clear that we have allowed the Andhra Bank to be a member of the Committee of Creditors that does not mean that they will raise objection to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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