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TMI Blog2019 (5) TMI 1799X X X X Extracts X X X X X X X X Extracts X X X X ..... This is again raised for admission in the present proceeding. Such a course obviously is not permissible in law as laid down in Dr. Vishnu Kumar Agarwal case - Petition dismissed. - C.P. NO. IB-1151(PB)/2018 - - - Dated:- 7-5-2019 - Chief Justice (Rtd.) M.M.Kumar Hon'ble President And Dr. Deepti mukesh hon'ble member (J) For the Financial Creditor: Mr. Arun Kathpalia, Sr. Advocate with Ms. Padmaja Kaul, Mr. Yugank Goel, Mr. Aishwarya Chaudhary, Advocates For the Respondent: Mr. Vijay Kr. Singh, Mr. Anand P. Singh, Mr. U.K. Chaudhary, Mr. Himanshu Handa Mr. Raunak Singh, M.M.Kumar, JUDGMENT The ICICI Bank Limited (for brevity 'Financial Creditor') has filed the instant application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (for brevity 'the Code') with a prayer for triggering the Corporate Insolvency Resolution Process in the matter of Era Infrastructure (India) Limited (for brevity 'the Corporate Debtor'). 2. The Corporate Debtor- Era Infrastructure (India) Limited is a company registered under the provisions of the Companies Act, 1956 and was incorporated on 19.10.2007. The identificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany-M/s. Era Infra Engineering Private Limited guaranteed payment under the EIIL RTL Facility in the event of a default by EIIL, by purchase of the entire outstanding arnount of the EIIL RTL Facility. As per clause 4.2 (a) on the occurrence of any loan purchase event, the applicant has the right but not the obligation to sell the whole or part of the outstanding EIIL RTL Facility to the Parent Company-M/s. Era Infra Engineering Private Limited at the loan purchase exercise price and the Parent Company-M/s. Era Infra Engineering Private Limited is under an obligation to purchase the outstanding EIIL RTL Facility from the applicant. Accordingly, the Parent CompanyM/S. Era Infra Engineering Private Limited guaranteed the payments to be made by EIIL to the applicant. (b) Non-disposal arrangement - The applicant, the Parent Company-M/s. Era Infra Engineering Private Limited and IDBI Trusteeship Service Limited (EIIL Security Trustee) entered into a non-disposal arrangement dated 16.06.2011. According to the terms incorporated in the non-disposal arrangement the Parent Company-M/s. Era Infra Engineering Private Limited agreed not to deal with or divest 30% equity share capital of EI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a minimum of 30% of equity share capital of EIIL for securing the EIIL RTL Facility and the Restructured Facilities. However, the Parent Company-M/s. Era Infra Engineering Private Limited failed to fulfil the aforesaid terms and had only deposited 15,242,070 shares in the trust and retention account. The shares deposited in the trust and retention account constituted only 12.70% of the equity share capital of EIIL. Accordingly, the applicant vide letters dated 08.07.2016, 30.06.2017 24.08.2017, requested the Parent Company-M/s. Era Infra Engineering Private Limited, along with EIIL, to arrange for the balance shares (20,759, 116 shares). However, the Parent Company-M/s. Era Infra Engineering Private Limited did not pay any heed to the aforesaid request. 2. Due to consecutive defaults on its payment obligations under the Restructured Facilities particularly in payment of interest, demand notices dated 20.03.2017 and 13.04.2017 were issued by the applicant to inter alia EIIL and the Parent Company-M/s. Era Infra Engineering Private Limited demanding payment under the EIIL RTI Facility and Restructured Facilities. Despite receipt of aforesaid demand notices, EIIL and/or the Par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Company-M/s. Era Infra Engineering Private Limited under the EIIL RTL Facility (Revocation Letter). It is stated that in terms of clause 5 (11) read with clause 12 of the Restructuring Agreement, the original facility agreement i.e., the EIIL RTL Facility existing prior to restructuring stands re-instated. Therefore, it is highlighted that the payment obligations and the securities against the same would be as per the terms of the EIIL RTL Facility. Pursuant to the Revocation letter, the applicant directed EIIL and the Parent Company-M/s. Era Infra Engineering Private Limited to pay the reinstated liabilities to the applicant. However, no amount has been paid to the applicant towards the aforesaid facilities granted to EIIL. 4. A perusal of the column-I 'General Definitions' which envisaged in terms and conditions attached with the Credit Arrangement Letter ('CAL') dated 30.09.2010 (at pg. 97) which is a initial document in respect of granting aforesaid loan facilities, the abovesaid parties had been depicted by using two different expressions namely the Corporate Debtor as 'Borrower' and Era Infra Engineering Limited as 'Parent'. At this stage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e applicant-the ICICI Bank before this Tribunal. After issuance of notice and considering the reply of the Resolution Professional, we accepted the application of the applicant-the ICICI Bank on 06.12.2018. The relevant observations, made, at paragraph 18, by us, reads thus: 18. In order to determine whether the agreements, arrangements, undertaking etc. involved in this matter would qualify to be called 'Contract of Guarantee' we must dwell on Section 126 of the Contract Act, 1872 which reads as under: Section 126. 'Contract of guarantee', 'surety', 'principal debtor' and 'creditor'-A 'contract of guarantee' is a contract to perform the promise, or discharge the liability, of a third person in case of his default. The person who gives the guarantee is called the 'surety'; the person in respect of whose default the guarantee is given is called the 'principal debtor', and the person to whom the guarantee is given is called the 'creditor'. A guarantee may be either oral or written. A bare perusal of Section 126 of the Contract Act makes it patent that it demystify a contract of guarantee to mean a con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the COC by adding the aforesaid claims. It shall also grant the applicant its voting share in the COC in proportion to such claims with all consequential benefits arising therefrom. 8. Therefore, the question arises whether the same claim could be made the basis for filing an application under Section 7 of the Code or it is prohibited. The question is no longer res inteara. In, Dr. Vishnu Kumar Agarwal v. M/S. Piramal Enterprises Ltd., Company Appeal (AT) (Insolvency) No. 346 of 2018 decided on 08.01.2019, the Learned Appellate Tribunal held that: 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') 9. In light of the aforesaid facts and circumstances of the case, the question further is as to whether the claim lodged by the applicant-the ICICI Bank which was based on t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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