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TMI Blog2019 (7) TMI 1189X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. Gujarat NRE Coke Limited filed application under Section 10 on the basis of which Corporate Insolvency Resolution Process was started. The Appellant has triggered Corporate Insolvency Resolution Process only against Bharat NRE Coke Limited - ( Corporate Debtor ), therefore, it cannot be held that the Appellant had triggered two Corporate Insolvency Resolution Process against two different sets of the Corporate Debtor for same set of claim. Further the Financial Creditors of the Corporate Debtor having 96% of the voting shares have also not raised any such plea. In fact, it appears that the contest between the Appellant and the 1st Respondent is whether 1st Respondent can be a member of the Committee of Creditors or not which cannot be decided by this Appellate Tribunal while deciding the question of initiation of the Corporate Insolvency Resolution Process against the Corporate Debtor - there is no merit in the appeal - appeal dismissed. - Company Appeal (AT) (Insolvency) No. 322 of 2019, Company Appeal (AT) (Insolvency) No. 255 of 2019 - - - Dated:- 23-7-2019 - Mr. S.J. Mukhopadhaya Chairperson, Mr. A.I.S. Cheema Member(Judicial) and Mr. Kanthi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ares of the Corporate Debtor in satisfaction of the Share Pledge Agreement . The said shares (2,00,00,000 in number) were confiscated on 24th March, 2017 by SMC Global Securities Limited . A value worth INR 57,00,00,000/- (Rupees Fifty-Seven Crores only) was assigned to these shares. e. Despite, the obligation of the Corporate Debtor being limited to the pledged shares, which was discharged on account of their invocation by 1st Respondent, an application under section 7 of the Code was filed by 1st Respondent before the Adjudicating Authority purportedly on the basis of the Arbitral Award dated 16th August, 2016. 5. Learned counsel for the Appellant relied on the decision of this Appellate Tribunal in Dr. Vishnu Kumar Agarwal v. M/s. Piramal Enterprises Limited─ Company Appeal (AT) (Insolvency) Nos. 346 347 of 2018 disposed of on 8th January, 2019 to suggest that for same claim, the Financial Creditor cannot trigger Corporate Insolvency Resolution Process against two Corporate Debtor(s) . 6. It was further submitted that there is no financial debt as the transaction under the Coal Purchase Agreement is in the nature of provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sources Limited (now merged with the Corporate Debtor ) with clear stipulation that in the event of non-performance, interest @ 30% p.a. on the unadjusted advance payment is to be paid. In the event of non-performance, the amount so invested will be deemed to have been paid as consideration for time value of money. 13. It is not in dispute that the Gujarat NRE Mineral Resources Limited - ( Corporate Debtor ) since amalgamation failed to perform its duty, for the said reason, the Award was passed in favour of the 1st Respondent. Therefore, the amount disbursed by the 1st Respondent- Jindal Steel and Power Limited to the Corporate Debtor on failure, performance became time value for money as the 1st Respondent is entitled for interest @ 30% p.a. on the unadjusted advance payment as allowed by the Arbitral Tribunal. Therefore, we hold that the 1st Respondent comes within the meaning of the Financial Creditor . 14. The decision of this Appellate Tribunal in Dr. Vishnu Kumar Agarwal v. M/s. Piramal Enterprises Limited (Supra) relates to triggering Corporate Insolvency Resolution Process by same Financial Creditor against two different Corporate Deb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r one Corporate Guarantor and other Corporate Guarantor ), till it is shown that the Corporate Debtors combinedly are joint venture company. 15. In the present case, the Appellant has not triggered any application under Section 7 or Section 9 against Gujarat NRE Coke Limited which is undergoing liquidation. Gujarat NRE Coke Limited filed application under Section 10 on the basis of which Corporate Insolvency Resolution Process was started. The Appellant has triggered Corporate Insolvency Resolution Process only against Bharat NRE Coke Limited - ( Corporate Debtor ), therefore, it cannot be held that the Appellant had triggered two Corporate Insolvency Resolution Process against two different sets of the Corporate Debtor for same set of claim. 16. So far as the claim of 1st Respondent is concerned; it has not been made clear as to whether the claim against Gujarat NRE Coke Limited arises out of same agreement based on which application under Section 7 has been preferred against Bharat NRE Coke Limited - ( Corporate Debtor ). 17. Further, even if it is admitted that it is for the same set of claim, it is for the 1st Respondent to deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Vishnu Kumar Agarwal v. M/s. Piramal Enterprises Limited , as noticed above. 24. It is stated that initially the 1st Respondent had issued a Demand Notice under section 8 of the Code to Gujarat NRE . However, as the Corporate Insolvency Resolution Process of Gujarat NRE started pursuant to an application under section 10 of the Code, no application was filed by the 1st Respondent. 25. In the present case, the Appellant- Promoter has taken plea that the 1st Respondent invoked the pledged shares in the Corporate Debtor in satisfaction of the Share Pledge Agreement . The said shares (2,00,00,000 in number) were confiscated on 24th March, 2017 by SMC Global Securities Limited . 26. It was submitted that the 1st Respondent initially filed liquidation proceeding pursuant to the Award against the Corporate Debtor which was withdrawn and thereafter filed application under Section 7. 27. Reliance has also been placed on the agreement, as noticed earlier. 28. In the present case, we have already held that the 1st Respondent comes within the meaning of Financial Creditor , as defined under Section 5(7) having disbursed the amount fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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