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TMI Blog2022 (9) TMI 1012X X X X Extracts X X X X X X X X Extracts X X X X ..... n-cum-Pledge Agreements and supporting documents. The interpretation given by the Appellate Authority is definitely a possible interpretation. The interpretation is a plausible interpretation which cannot be interfered with in an appeal under Section 62 of the IBC. If there are two borrowers or if two corporate bodies fall within the ambit of corporate debtors, there is no reason why proceedings under Section 7 of the IBC cannot be initiated against both the Corporate Debtors. Needless to mention, the same amount cannot be realised from both the Corporate Debtors. If the dues are realised in part from one Corporate Debtor, the balance may be realised from the other Corporate Debtor being the co-borrower. However, once the claim of the Financial Creditor is discharged, there can be no question of recovery of the claim twice over. Appeal dismissed. - CIVIL APPEAL NO. 6613 OF 2021 - - - Dated:- 22-9-2022 - INDIRA BANERJEE And J. K. MAHESHWARI , JJ. For the Appellant : Mr. K.V. Vishwanathan, Sr. Adv. Ms. Dhanyashree Jadeja, Adv. Mr. Ankit Lohia, Adv. Mr. Samiron Borkataky, AOR Mr. Manas Kotak, Adv For the Respondent : Mr. Prateek Sakseria, Adv. Mr. Saket Mone, Adv. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncial Creditor under the Loan-cum-Pledge Agreements, but stated that it could not pay the same on account of genuine difficulty. 7. On 21st September 2020, the Financial Creditor filed a petition under Section 7 of the IBC being C.P.(IB) No.1224/MB/2020 for initiation of CIRP against Premier for default in repayment of Rs. 8,35,25,398/-. 8. On the same day, the Financial Creditor also filed a petition against Doshi Holdings, under Section 7 of the IBC, for initiation of CIRP in respect of the same claim of Rs. 8,35,25,398/-, based on the same loan documents. 9. Both the petitions filed by the Financial Creditor were heard together by the Adjudicating Authority (NCLT). By an order dated 29th January 2021, the Adjudicating Authority (NCLT) admitted the petition for initiation of CIRP against Premier. By another Order passed on 19th February 2021, the Adjudicating Authority (NCLT) admitted the petition for initiation of CIRP against Doshi Holdings for the same set of loans arising out of the same loan documents, in respect of which the Financial Creditor had initiated CIRP against Premier. 10. The Appellant filed an appeal in the National Company Law Appellate Authority (N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ext argued that the Adjudicating Authority/Appellate Authority erred in arriving at the finding that Doshi Holdings was a borrower and hence liable to make repayment in respect of the loan disbursement to Premier. He submitted that the loan was never utilised by Doshi Holdings. 16. Mr. Vishwanathan argued that it was not in dispute that no amount was disbursed to Doshi Holdings. Having accepted the factual position, that no amount had been disbursed to Doshi Holdings, the Adjudicating Authority/Appellate Authority erred in arriving at the finding that Doshi Holdings was a borrower. The petition under Section 7 of the IBC was not maintainable against Doshi Holdings. 17. Mr. Vishwanathan argued that the Adjudicating Authority/Appellate Authority misconstrued the expression financial debt in Section 5(8) of the IBC and/or failed to appreciate the scope and ambit of the said expression. The definition of financial debt in Section 5(8) of the IBC does not include a pledge. 18. Mr. Vishwanathan submitted that Contract of Indemnity , Contract of Guarantee and Pledge have been defined in the Indian Contract Act, 1872. The expressions are different from one and another in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pressions borrower and pledgor had to be read in the context of the obligation of the parties under the Loan-cum-Pledge Agreement. 24. Mr. Vishwanathan finally argued that the Adjudicating Authority had passed its order dated 19th February 2021, impugned in this appeal, ignoring its earlier finding pronounced in open Court on 29th January 2021, which is as follows :- 25...However, under Section 7, if the claim against Premier Limited (Corporate debtor herein) is Admitted then for the same set of loans, arising under the same loan documents, the same debt/claim against Doshi will not be permissible.. . 25. Mr. Vishwanathan submitted that the order of admission was contrary to judicial discipline. Relying on the judgment of this Court in Sub-Inspector Rooplal Another v. Lieutenant Governor and Others (2000) 1 SCC 644, Mr. Vishwanathan argued that in the event, if any, Member of the Bench was of the opinion that earlier view taken by another Member of the same Bench was incorrect, the matter should have been referred to a larger Bench to avoid difference of opinion. 26. Mr. Prateek Sakseria, learned counsel appearing on behalf of the Respondent submitted that Dosh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id criteria inasmuch as it is a Co-Borrower in terms of the Loan Agreement under which monies have been borrowed by both Premier and Doshi Holdings. Both Premier and Doshi Holdings have executed loan receipts admitting receipt of loan amounts and demand promissory notes unconditionally promising to pay the monies borrowed to the Financial Creditor for value received. 32. The mere fact of it also being a pledgor is wholly irrelevant and does not in any manner disentitle the Respondent No.1 to initiate proceedings under Section 7 of the IBC against such a co-borrower. 33. It is not in dispute that the Financial Creditor disbursed loan to the tune of Rs.6,00,00,000/- to Premier pursuant to the Loan-cum-Pledge Agreements referred to above, executed both by Premier and by Doshi Holdings. Doshi Holdings has been referred to in the agreement as borrower and pledgor. Prima facie, it appears that Doshi Holdings was a party to the Loan-cum-Pledge Agreement in its dual capacity of borrower and pledgor of shares. The Appellate Authority has arrived at the factual finding that Doshi Holdings is also a borrower under the Loan-cum-Pledge Agreement. The factual finding of the Appellate Autho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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