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TMI Blog2020 (7) TMI 205X X X X Extracts X X X X X X X X Extracts X X X X ..... exhausting the rights against the Principal Borrower, as the Financial Creditor is also the Financial Creditor qua the Corporate Guarantor. Hon'ble NCLAT have categorically laid down in the case of DR. VISHNU KUMAR AGARWAL VERSUS M/S. PIRAMAL ENTERPRISES LTD. [ 2019 (2) TMI 316 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI ] that since a Financial Creditor cannot make a claim for the same set of debt in two separate CIRP processes, he cannot be allowed to pursue two separate Sec. 7 applications for the same claim. If the CIRP is initiated against one of the Corporate Debtors, after such initiation the Financial Creditor cannot trigger CIRP against the other Corporate Debtor/ Corporate Guarantor for the same claim amount. This Adjudicating Authority is not inclined to admit the instant application, which is filed on the same set of facts, claim and default in respect of which a CIRP is already under progress and wherein the claim of the applicant herein is already admitted. Application dismissed. - Shri. K. Anantha Padmanabha Swamy, Member Judicial. Dr. Binod Kumar Sinha, Member Technical. For the Petitioner/ Financial Creditor: Mr. Saini Keshav Rao and Mr. K. Anil Kuma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a Joint Venture under which the Principal Borrower was floated, came forward and had executed Corporate Guarantee documents in favour of the Financial Creditor and other Consortium of Banks, thus giving guarantee to the amounts that were provided by the Financial Creditor to the Principal Borrower. 2.6 That by virtue of such Corporate Guarantee, the Corporate Debtor was also under an obligation to see that the amounts availed under finance from the Financial Creditor was repaid by the Principal Borrower. 2.7 That, in total, the Financial Creditor has Sanctioned an amount of ₹ 3069,68,00,000/- (Rupees Three Thousand Sixty Nine Crores Sixty Eight Lakhs Only) to the Principal Borrower and had in fact disbursed an amount of ₹ 2769,19,05,767/- (Rupees Two Thousand Seven Hundred and Sixty Nine Crores Nineteen Lakhs Five Thousand Seven Hundred and Sixty Seven Only) to the Principal Borrower. 2.8 That the Principal Borrower had committed default and the Account of the Principal Borrower was declared as Non-Performing Asset (NPA) on 21-12-2015 by the Financial Creditor. 2.9 That the Financial Creditor had filed an Application under Section 7 of Insolvency Bankruptcy Code, 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porate Guarantor is admitted and CIRP initiated, the Financial Creditor is debarred from initiating another proceedings U/ s. 7 against the Corporate Guarantor on the basis of same set of claims and default. 3.3 It is stated that Hon 'ble NCLAT in the case of Vishnu Kumar AgarwaZ Vs PiramaZ Enterprises Limited vide CA (AT) (Insolvency) No.347 of 2018 dt. 8 th January, 2019' categorically held that once a Petition under Section 7 of IBC is filed by Financial Creditor against the Principal Debtor/ Co-Guarantor and CIRP is initiated, the Financial Creditor cannot file another Application on the very same set of claim, which is prohibited under the Provisions of IBC. 3.4 That the present Company Petition is not maintainable in terms of Section 7 of the I B Code, 2016, since the Financial Creditor and other Consortium of Banks themselves are holding Controlling Interest and Shareholding to the tune of 51% in the Principal Debtor Company and as such, the Financial Creditor and other Consortium of Banks have no locus standi to file the present Company Petition. 4. Counsel for the Applicant filed its Rejoinder and written submissions interalia stating as under:- 4.1 That the Corpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear that, even though applications cannot be filed against two Principal Borrowers in normal circumstances, the same can be done, if it is demonstrated that both the Principal Borrowers (i.e., one Principal Borrower Corporate Guarantor) are Joint Venture Companies. 4.6. It is stated further that since there are sufficient documents to prove that the Principal Borrower is a Joint Venture entity of Corporate Guarantor, the Judgment passed by the Hon 'ble NCLAT, in the matter of Dr. Vishnu Kumar Agarwal Vs. M/S Piramal Enterprises Ltd dated 08-01-2019 shall not be a bar for admission of the present Application by this Adjudicating Authority. At the most, the request of the Financial Creditor to appoint another Interim Resolution Professional cannot be considered and the same Interim Resolution Professional who was appointed in the matter of CP (IB) No. 616/07/HDB/2018 shall be appointed if the present application is also admitted. 4.7. As regards the contention of the Respondent's herein that, the Financial Creditor is a major stake holder in the Principal Debtor Company and as such cannot invoke provisions of Insolvency Bankruptcy Code, 2016 against the Corporate Guarantor, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all the ingredients that are required for admission of an application under Section 7 of I B Code, 2016, the present application needs to be admitted by discarding the defenses as put forth by the Corporate Guarantor. 5. Heard both sides and perused the record as well as written submissions. 6. It is a matter of fact and record that the Petitioner herein had earlier filed an application U/ s. 7 of the IBC, 2016 against M/S. Athena (Chhattisgarh) Power Limited, the 'Principal Borrower' vide CP(IB)No.616/7/HDB/2018 and the same stood admitted vide this Adjudicating Authority's order dated 15.05.2019 and CIRP is in progress. 7. It is also admitted by the Petitioner herein that the instant application U/ s. 7 of the Code has been filed against the Respondents herein namely M/S. Athena Energy Ventures Private Limited being the Corporate Guarantor in respect of the same set of facts, claim and default upon which the CP(IB)No.616/7/HDB/2018 was filed and admitted. 8. The main question, therefore, to be determined by the Adjudicating Authority in this matter is: Where an Application U/ s. 7 of the Code as filed by the 'Financial Creditor' is already admitted against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;Corporate Guarantor', or 'Principal Borrower' or two 'Corporate Guarantors' or one 'Corporate Guarantor' and other 'Corporate Guarantor'), till it is shown that the 'Corporate Debtors' combinedly are joint venture company. 11. If we apply the above ruling of NCLAT to the facts of the present case, there is no doubt that the question framed in para 8 above has to be answered in the negative. 12. The Applicant has contended that the above ruling does not apply in the instant case as Hon'ble NCLAT have allowed initiation of CIRP in the case of Joint Venture Company. As regard this contention, it is observed that Hon'ble NCLAT have categorically laid down that no application can be filed by the Financial Creditor against two or more Corporate Debtors on the ground of joint liability, unless it is shown that the Corporate Debtors combinedly are a Joint Venture Company. A joint Venture Company is formed when two or more independent companies agree to pool their resources and incorporate a Joint Venture under the Companies Act 2013, for running a common business. Such a Joint Venture has a separate Memorandum of Association/ Articles ..... X X X X Extracts X X X X X X X X Extracts X X X X
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