a. That this Hon’ble Adjudicating Authority direct the Respondent that the claim of the Applicant as per the FORM C dated 12th September 2019 be admitted by
the Respondent;
b. That this Hon’ble Adjudicating Authority direct the Respondent to Stop the E â€" Voting scheduled on November 04, 2019 (Monday) at 4:00 PM till November
08, 2019 (Friday) at 4:00 PM and initiate the laiddown process after admitting aforesaid claim of the Applicant;
c. That the Respondent be direct to update the Committee of Creditors voting share ratio after admitting the claim of the Applicant;
d. For cost;
e. For such other and further reliefs as the Hon’ble Adjudicating Authority may deem fit.
SUBMISSIONS MADE BY WAY OF AFFIDAVIT IN REPLY BY RESPONDENT/RP
13. Pursuant to public announcement made in addition to other proof of claims received, he received a proof of claim dated 07.08.2019 from IDBI
Bank i.e. only after 155 days of the initiation of Corporate Insolvency and Resolution Process for an amount of Rs.65,59,66,435.12/- (Rupees Sixty-
Five Crore Fifty-Nine Lakh Sixty-Six Thousand Four Hundred Thirty-Five Twelve Paisa Only). Having regard to the fact that the said claimant is a
PSU Bank, the Respondent/RP did not raise any objections for such delayed filings.
14. Subsequently, series of emails were exchanged between the Applicant and Respondent RP seeking additional information/workings and
computations with regard to the said claim.
15. During the course of verification, the Applicant once again filed a revised Form C dated 12.09.2019 i.e. on the 191st day of Corporate Insolvency
and Resolution Process (beginning from 05.03.2019).
16. The Respondent further states that it is pertinent to note that the Applicant had over a verbal communication informed the Respondent / RP within
the first 30 days of initiation of Corporate Insolvency and Resolution Process that they have an exposure and would file a claim shortly, which was
eventually received on the 155th day. The Respondent/ RP diligently and promptly updated the CoC members about the said exposure and has also
noted that the Corporate Guarantee was given by the Corporate Debtor to IDBI Bank to the tune of Rs. 26.74 Crores, in the minutes of the 1st CoC
meeting held on 03.04.2019.
17. The Respondent states that the Applicant was included as part of the CoC in the 7th CoC meeting held on 17.10.2019 wherein the Applicant i.e.
IDBI Bank was allotted the highest voting share of 32.46% (erroneously computed as 33.54% - this has been clarified in the 8th CoC meeting held on
24.10.2019) based on the admitted claim of Rs.47,33,11,572/- out of the amount claimed Rs. 61,41,79,590/-(Rupees Sixty-One Crore Forty-One Lakh
Seventy-Nine Thousand Five Hundred Ninty Only).
18. The Respondent submits that the Applicant itself agreed that it does not have any Board Resolution passed by the Corporate Debtor of Rs. 35
Crores on behalf of the Principal Borrower i.e. Deegee Orchards Private Limited. In fact, the last available Board Resolution on the subject is dated
05.07.2012 wherein Corporate Guarantee of only Rs. 21 Crores has been approved by the Corporate Guarantor. Hence, the claim has been admitted
based on the available information, having regard to the provisions of Regulation 14 of the IBBI (Insolvency Resolution Process for Corporate
Persons) Regulations, 2016.
19. Further Respondent states that Applicant has attached certain sanction letters and related documents but fails to place crucial documents before
this Bench with regard to the fact that other financial creditors which are also PSU Banks having secured charge over the assets of the Corporate
Debtor have refuted the claim made by the Applicant in respect to the Corporate Guarantee allegedly executed by the Corporate Debtor. The lenders
have also stated that no prior permission of the Consortium lenders was taken by the Corporate Debtor prior to executing the alleged Corporate
Guarantee inspite of the terms and conditions as per the sanction letter dated 24.08.2007, inter alia restricted the Corporate Debtor to “undertake
guarantee obligations on behalf of any other company, firm or person†and hence, the said corporate guarantee ought to be treated as void ab
initio.
20. The Respondent states that the Applicant is referring to the letter dated 10.07.2014 invoking the corporate Guarantee and claiming Rs.
30,49,24,849/- as of that date. The Applicant has not placed on record the objections raised by other Financial Creditors.
a) Letter dated 02.08.2014 addressed by Union Bank to IDBI Bank.
b) Letter dated 14.07.2014 addressed by Canara Bank to IDBI Bank.
c) Letter dated 02.07.2014 addressed by Oriental Bank of Commerce to IDBI Bank.
All the above mentioned banks have raised concerns over invocation of Bank Guarantee in absence of permission from existing consortium lenders.
21. The respondent further submitted that the Applicant has filed a revised claim on 12.09.2019 for an amount of Rs. 61.41 crores but has
conveniently left out to mention the following facts: -
a) All the objection letters which were issued by other consortium lenders in the year 2014, against the IDBI’s invocation of Corporate Guarantee letters dated
10.07.2014, which are now placed on record by the Respondent RP.
b) The said claim was first filed only after 155 days of Corporate Insolvency and Resolution Process which the revised claim was filed on 191st day of Corporate
Insolvency and Resolution Process, still the RP, having regard to the relevant CIRP Regulations, has treated the Applicant as a CoC member and infact the Applicant
already enjoys the maximum voting share compared to other secured Financial Creditors i.e. 32.46% which is higher than all other lenders.
22. The Respondent states that the Applicant is trying to escape from a stringent requirement of seeking NOCs from the existing lenders of the
Corporate Debtor, before accepting any such Corporate Guarantee moreover. Secondly, it is interesting to note that a Bank of such repute, accepts a
Board Resolution dated 19.09.2013 for ratifying a Corporate Guarantee Agreement dated 22.01.2010. Moreover, in view of the Respondent / RP
there is no such official record as per the secretarial records of the Corporate Debtor. A search was also conducted on the RoC website to verify the
same and it was found that no such Board Resolution was uploaded. This is nothing else but a complete disregard of need to have material and critical
documents in place and non-adherence of statutory requirements.
23. The Respondent further states that the Applicant was also a part of the CoC member and had a right for e-voting, which the Applicant has very
well exercised and was only Financial Creditor to vote “against†the Resolution Plan, which otherwise has received favourable votes in excess of
the threshold of 66% of the total voting share. Moreover, the Resolution Plan itself had proposed a payment of 71 lacs to the Applicant. Hence the
Applicant was no way prejudiced from its right to be a party of the Resolution Plan.
24. We have perused the records, it is observed that the Applicant is conveniently trying to escape from the onus of proving its claim rather than
expecting the Respondent / RP to the same without any application of mind, which is a clear mis-interpretation of the provisions of Section 18 of the
Code. The RP is duty bound to apply his mind while collating and verifying the information to justify the claim and where the said claim is not
supported with documentary evidences, the RP ought to refrain from admitting such claims. The Applicant fails to appreciate that an IRP/RP is not a
mere rubber stamp to keep admitting claims without any verifications. Form the facts of the case it is clear that RP has conscientiously reached at
conclusion not admitting partial claim of the Respondent which was not supported by documents. Therefore, we are not inclined to allow this
application, hence the same is rejected.
25. With the above observations and directions MA 3545 of 2019 In CP No. 2285 of 2018 is disposed of as rejected.
26. In this matter Original Petitioner i.e. Phoenix ARC Private Limited filed IA 518 of 2021 for rejection of MA 3545 of 2019, In the lights of above
observations nothing survives in IA 518 of 2021. Hence the same is also disposed of.
