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TMI Blog2021 (12) TMI 629X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Authority merely affirmed the stand taken by the IRP/RP, without verifying the documents placed before it. Whether the Corporate Guarantee was made available to the Respondent No.1 and before the Adjudicating Authority? - HELD THAT:- It is a fact that the Corporate Guarantee was shared with the 1st Respondent vide E-mail dated 22.01.2020 and the said Corporate Guarantee was also filed before the Adjudicating Authority along with convenience volume. Further it is also evident that before passing the rejection of the claim by the 1st Respondent vide order dated 06.02.2020 the Appellant submitted the Corporate Guarantee to the 1st Respondent therefore the 1st Respondent ought to have meticulously considered the Corporate Guarantee and other documents made available before him - the observation made by the Learned Adjudicating Authority that the Corporate Guarantee was not produced before it is without any basis. Whether not reflecting Corporate Guarantee in the Books of Accounts invalidates the claim? - HELD THAT:- It is an admitted fact that the Corporate Guarantee having been executed cannot be denied and cannot unanimously decide by the 1st Respondent to the contrary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. IndusInd Bank Assignment Agreement dated 29.03.2017 180,92,22,164 4. IndusInd Bank Assignment Agreement dated 29.03.2017 54,97,35,793 Total 507,88,68,502 The claim of the Appellant was verified by the IRP. The CoC was constituted and the Appellant voting share percentage worked out to around 40.03%. The Respondent No.1 raised various queries vide multiple E-mails dated 07.01.2020, 22.01.2020, 02.02.2020 and 06.02.2020 and the Appellant duly responded to the same and provided all necessary clarifications to all the queries raised by the Respondent vide e-mail and letter dated 24.01.2020. The Respondent vide E-mail dated 06.02.2020 informed the Appellant that the claims worth approximately ₹ 206 Crores have been rejected and ₹ 180.92 Crores have been kept in abeyance, and claims worth approximately ₹ 119.72 Crores have only been admitted thereby reducing the appellants admitted claims from approximately ₹ 507 Crore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned Order rejected the claim of Appellant to the extent of ₹ 54,97,35,793/- in relation to the Corporate Guarantee issued by M/s. Vasan Health Care Pvt. Ltd. i.e. the Corporate Debtor for the amount borrowed by M/s. Vasan Dental Care Pvt. Ltd. The Learned Counsel submitted that the Learned Adjudicating Authority taken the same stand as taken by the 1st Respondent while rejecting the claim of the Appellant in Paras-51, 52 of the Impugned Order. He further submitted that the Learned Adjudicating Authority failed to appreciate the fact that the Corporate Guarantee having been executed cannot be denied and cannot be called into question. He submitted that without admitting the fact that the Corporate Guarantee is not reflected in the Books of the Corporate Debtor, the said lapse of the Corporate Debtor by itself will not invalidate the Guarantee. The Assignor Bank had obtained requisite Board Resolutions from both the Corporate Debtor and the Borrower while sanctioning the subject loan to the Borrower. The same has also been furnished before the Learned Adjudicating Authority on 19.08.2020 by way of an additional typed set of Papers. 6. The Learned Counsel reiterated its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Status Report of the Corporate Debtor giving out the details of the CIRP Proceedings. Analysis/Appraisal 13. Heard the Learned Counsel appeared for the respective parties, perused the pleadings/documents and citations relied upon by them. 14. The points for consideration is whether (a) Corporate Guarantee was made available to the Respondent No.1 and also before the Adjudicating Authority? (b) Not reflecting Corporate Guarantee in Books of Accounts, invalidates the claim? (c) Not invoking Corporate Guarantee and not crystalizing into debt in the Books of Corporate Debtor invalidates the claim. 15. Before adverting to the above points, we would like to emphasize the order passed by the Adjudicating Authority in rejecting the claim of the Appellant to the extent of ₹ 54,97,35,793/- at paras 51, 52 and 56, thus read as under. 51. However, in so far as the amount claimed of ₹ 54,97,35,793/- in relation to the Corporate Guarantee alleged to have been given by the Corporate Debtor VHPCL to the amount borrowed by Vasan Dental Hospital Private Limited, we are not in a position to direct the IRP to admit the claim for the reason that the Applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nk (Assignor) Documents annexed in support thereof Annexure 1 to Annexure 13 Debt assigned to the claimant by the In support of claim made in Serial No.4 as above documents annexed Annexure 1 to Annexure 12 (Annexure 12 repeated twice ; Hence in both the Assignor vide Assignment Agreement dated 29.03.2017. Debt II Credit facility of ₹ 105 Crore by ECL Finance Ltd. (Assignor) comprising of ₹ 50 Crore disbursed on 21.01.2015 and ₹ 55 Crore disbursed on 12.10.2015. - Both assigned vide Assignment Agreement dated 26.09.2018 to the claimant claim forms annexure tallies) Assigned vide Assignment Agreement dated 29.03.2017. Sl.No.6 Details about the transaction classified as Debt 1 and Debt II as above given in Sl. No.5 Debt II confirmation of balance 28.02.2018 ₹ 100,40,43,084/- (principal ₹ 55 Crore) ₹ 76,41,24,648/- (principal ₹ 50 Crore) Gives details only about debt transaction pertaining to IndusInd Bank disbursal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that there is no dispute with regard to the Corporate Guarantee issued by the Corporate Debtor for the loans borrowed by the VDHL a subsidiary of Corporate Debtor. 18. Further there is a correspondence between the Appellant and the IRP with regard to the exchange of documents. The IRP vide E-mail dated 02.02.2020 Page 203 Vol.2 addressed to the Appellant whereby it is stated as under: the claims of EARC (Appellant), the status of admission, abeyance and rejection of claim on account of Corporate Guarantee stated to have been issued by the Corporate Debtor for Vasan Dental, are all enclosed in this word document. From the above e-mail it is evident that the IRP received the Corporate Guarantee and the Corporate Guarantee also filed before the Adjudicating Authority. However, the RP/IRP stated that he is not in a position to admit the same. After receipt of the documents from the Appellant, the IRP addressed the above E-mail dated 02.02.2020 and subsequently rejected the claim on 06.02.2020. It is apparent that the documents have been furnished/submitted by the Appellant to the IRP before rejection of the claim of the Appellant. Therefore, the IRP ought to have conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at assuming without admitting that the Corporate Guarantee is not reflected in the Books of the Corporate Debtor, this lapse in itself will not invalidate the Guarantee. The Learned Counsel also stated that the Assignor Bank had obtained requisite Board Resolutions both from Corporate Debtor and the Borrower and the same was also furnished to the Learned Adjudicating Authority on 19.08.2020 by way of additional typed set of documents. This Tribunal accepting the submissions as made by the Learned Counsel and this Tribunal is also of the view that the existence of Corporate Guarantee is not in question either by fact or in law. Therefore, the claim cannot be invalidated on the above ground. 23. With regard to the Point No. (c), not invoking Corporate Guarantee and not crystalizing into debt, whether it invalidates the claim. We would like to discuss the definition of the claim . 24. The claim defined in Section 3 (6) means a right to payment, whether or not such right is reduced to judgment, fixed, disputed, undisputed, legal, equitable, secured or unsecured. In this regard, a beneficial reference is drawn from the decision of this Tribunal in the matter of Export Import Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Indu Sind Bank Ltd. annexed at Pages 118 to 133 to the typed set of documents filed by the Appellant. 27. After analyzed the points as discussed above, in (a) (b) and (c), this Tribunal comes to a resultant conclusion that the Corporate Guarantee was made available with IRP and Adjudicating Authority. Thus, the IRP and the Adjudicating Authority cannot take the unsustainable and unsound technical stand as discussed in Point b and c above while rejecting the claim. We unequivocally negative the stand taken by the IRP and the Adjudicating Authority. Having satisfied the grounds as made by the Appellant, the following order is passed. a. Paras 52 and 56 of the Impugned Order dated 22.02.2021 in IA/156/2020 in CA/1/2017 passed by the Adjudicating Authority with respect to rejecting the claim of the Appellant to the extent of ₹ 54,97,35,793/- is hereby quashed and set aside. b. We direct the 2nd Respondent (RP) to verify all the documents with regard to Corporate Guarantee issued by Vasan Healthcare Pvt. Ltd. in respect of above claim. c. After due verification of the documents, the 2nd Respondent is hereby directed to consider and admit the claim of the Appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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