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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 ..... 9. The Appellant, a 'Financial Creditor' has challenged the aforesaid order. 2. Learned counsel appearing on behalf of the Appellant submitted that 'Jindal Steel and Power Limited' do not come within the meaning of the 'Financial Creditor' as defined under Section 5(7) read with Section 5(8) of the 'I&B Code'. 3. Further, it was submitted that an Arbitral Award cannot be treated as a 'financial debt'. 4. According to learned counsel, the following transactions had taken place: a. On 27th August, 2013, a 'Coal Purchase Agreement', was entered between 'Gujarat NRE' and the 1st Respondent for the supply of 50,000 MT of Coal. The 1st Respondent advanced an amount of 39,00,00,000/- for the purchase of coal which was secured by way of pledge of shares owned by 'Gujarat NRE' and 'Gujarat NRE Mineral Resources Limited' (now merged with the 'Corporate Debtor'). b. Subsequently, dispute arose between 'Gujarat NRE' and 1st Respondent for the non-supply of Coke, which culminated into Arbitration and a consequent Award dated 16th August, 2016 was passed, which has been upheld by the Hon'ble Delhi High Court, vide order dated 1st February, 2017. c. The 1st Respondent, in the capacity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Learned counsel appearing on behalf of 1st Respondent submitted that the appeal under Section 61 is not maintainable as the Appellant is a 'Financial Creditor' and not an aggrieved person. 9. It was further submitted on the ground that the debt of the Appellant is being regularly serviced, the impugned order cannot be challenged. The Appellant's share in the 'Committee of Creditors' of the 'Corporate Debtor' being less than 4%, no prejudice shall be caused to the Appellant as the voting share of other 'Financial Creditors' is approx. 96% who have not appealed against the impugned order. 10. According to counsel for the 1st Respondent- the 'Jindal Steel and Power Limited' come within the meaning of 'Financial Creditor' as defined under Section 5(7) read with Section 5(8) of the 'I&B Code'. It fulfils each and every requirement of provisions. 11. Learned counsel for the 1st Respondent placed reliance on 'Coal Purchase Agreement' entered into between 'Gujarat NRE Coke Limited', 'Gujarat NRE Mineral Resources Limited' (now merged with the 'Corporate Debtor') wherein it is specifically encapsulated that the advance payment made was to be adjusted against the supply of coal and in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vency Resolution Processes'. If same claim cannot be claimed from 'Resolution Professionals' of separate 'Corporate Insolvency Resolution Processes', for same claim amount and default, two applications under Section 7 cannot be admitted simultaneously. Once for same claim the 'Corporate Insolvency Resolution Process' is initiated against one of the 'Corporate Debtor' after such initiation, the 'Financial Creditor' cannot trigger 'Corporate Insolvency Resolution Process' against the other 'Corporate Debtor(s)', for the same claim amount (debt). 32. There is no bar in the 'I&B Code' for filing simultaneously two applications under Section 7 against the 'Principal Borrower' as well as the 'Corporate Guarantor(s)' or against both the 'Guarantors'. However, once for same set of claim application under Section 7 filed by the 'Financial Creditor' is admitted against one of the 'Corporate Debtor' ('Principal Borrower' or 'Corporate Guarantor(s)'), second application by the same 'Financial Creditor' for same set of claim and default cannot be admitted against the other 'Corporate Debtor' (the 'Corporate Guarantor(s)' or the 'Principal Borrower'). Further, though there is a provision to fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Resolution Process'. Initiation of the 'Corporate Insolvency Resolution Process' in no manner will affect the right of the Appellant- who is a 'Financial Creditor' and has a right to submit its claim before the 'Resolution Professional'. 20. 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'. We find no merit in this appeal. It is accordingly dismissed. No costs. Company Appeal (AT) (Insolvency) No. 255 of 2019 21. This appeal has been preferred by Sh. Arun Kumar Jagatramka, Promoter of 'Bharat NRE Coke Limited'- ('Corporate Debtor') against the same very impugned order dated 11th March, 2019. 22. This Appellant has also taken similar plea that the 1st Respondent has no 'financial debt' within the meaning of Section 5(8) of the 'I&B Code' and therefore, the 1st Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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