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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 ..... rowed by the Vasan Dental Hospitals Pvt. Ltd. Appellant's Submissions: 2. Shri P.S. Raman, Learned Senior Counsel appeared for the Appellant submitted that the Appellant filed Form 'C' for a sum of Rs. 507,88,68,502/-as under: Sl. No. Assignor Bank Acquired by the Appellant under Claims (in Rs.) 1. ECL Finance-Loan 1 Assignment Agreement dated 26.09.2018 116,52,51,225 2. ECL Finance Loan 2 Assignment Agreement dated 26.09.2018 155,46,59,320 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 Rs. 206 Crores ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 stand that the Appellant vide E-mail dated 22.01.2020 shared a copy of the Corporate Guarantee dated 11.11.2015 with the Respondent subsequent to filing of Form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erused 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 Rs. 54,97,35,793/- at paras 51, 52 and 56, thus read as under. 51. "However, in so far as the amount claimed of Rs. 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 nor the IPR has produced the document, namely the agreement evidencing the furnishing of the corporate guarantee by the Corporate Debtor in relation to debt availed by VDHPL. Hence in the absence of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Rs. 100,40,43,084/- (principal Rs. 55 Crore) Rs. 76,41,24,648/- (principal Rs. 50 Crore) Gives details only about debt transaction pertaining to IndusInd Bank disbursal. Sl.No.8 Details of Security documents given in relation to Debt I and Debt II Only in relation to loan availed from IndusInd Bank Ltd. and subsequently assigned. 52. From the above comparative chart, it is clearly identifiable that in relation to IndusInd Bank facilities only the term loan amount had been reflected whereas in relation to the Corporate Guarantee there had been no murmur on the part of the Applicant while the claim statement was filed initially on 04.05.2017. Thus, in the absence of any primary document/evidence being produced in relation to the Corporate Guarantee as given by the Corporate Debtor in relation to the loan availed by VDHPL, this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting 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 considered the claim of the Appellant meticulously in accordance with law. 19. The Appellant addressed a detailed reply by letter dated 11.02.2020 in response to rejection of claim and clearly stated that while sanctioning the subject loan to VDHPL, the Assignor Bank i.e. Ind Sind Bank Ltd. had obtained requisite Board Resolutions from Vasan Health Care Pvt. Ltd. for the Corporate Guarantee provided by it. It is also stated that the non-recognition of Corporate Guarantee by the Vasan Healthcare Pvt. Ltd. in its annual report cannot be the basis of absolution of its obligations and the same cannot be rejected on the said reason. 20. We are of the view that the Appellant has provided all the information with the IRP/RP prior to rejection of claim. Further, after rejection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... talizing 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 Bank of India v Resolution Professional of JEKPL Pvt. Ltd. (NCLAT, Delhi) Company Appeal No.304 of 2017 dated 14.08.2018, whereby this Tribunal held at Para 54, 55 and 56 extracted as under: 54. "Therefore, stand taken by the respondents that the claim has not been matured cannot be ground to reject the claim. 55. Section 25 provides the duties of Resolution Professional. As per Section 25(2) (e), the Resolution Professional is required to maintain an updated list of all the claims. Aforesaid fact also suggests that the maturity of a claim or default of debt are not the guiding factors to be noticed for collating or updating the claims. The matter can be looked from another angle. It is only in case of 'debt' and 'default', a 'Financial Creditor' or 'Operational Creditor' ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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