Oldenburgische Landesbank Ag vs Satyendra P Khorania Rp Of M/S. Sumeet ...

IN THE MATTER OF: 1. Oldenburgische Landesbank AG (with which Bremer Kreditbank AG, Formerly known as KBC Bank Deutschland AG, merged) a company incorporated under German laws and having its registered office at Stau 15/17, 26122 Oldenburg, Germany ...Appellant Versus

1. Mr. Satyendra P. Khorania Resolution Professional of Sumeet Industries Ltd. 504 Trividhchamrersopp Fire Station Ring Road, Surat, Gujarat, India, 395002 skhorania@live.com ...Respondent No. 1 2. Committee of Creditors Sumeet Industries Ltd. 504 Trividhchamrersopp Fire Station Ring Road, Surat, Gujarat, India, 395002 cirpsumeetind@gmail.com ...Respondent No. 2

Present: For Appellant : Mr. Akhil Anand, Mr. Fateha Kachiwala, Mr. Vishrutyi Sahni & Ms. Muskaan Gupta, Advocates. For Respondent : Mr. Arun Aggarwal, Mr. Lovelesh Kukreja & Mr. Anmol Gupta, for R-2. JUDGMENT

(Hybrid Mode)

[Per: Justice Mohd. Faiz Alam Khan, Member (Judicial)]

The instant appeal is filed by the appellant under Section 61 of the

Insolvency and Bankruptcy Code, 2016 ('Code') against the order dated

05.04.2024 passed by the National Company Law Tribunal, Ahmedabad

Bench, Court No. 2, passed in IA 997/NCLT/AHM/2023 in CP (IB)

38/NCLT/AHM/2020, whereby the application filed by the appellant has

been dismissed.

2. Brief facts of this appeal are that appellant had entered into a Credit

agreement with corporate debtor Sumeet Industries Limited where by the

appellant granted a term loan facility of up to EUR 10,444,450 to the

corporate debtor. The CD defaulted on the repayment of the amount due

under the facility as per the repayment schedule and the appellant issued

several reminders and demand notice, however the loan amount was not

paid.

3. It is also evident that an amended agreement, supplementing the

original agreement was also executed between the parties whereby they

agreed to suspend the payments due on 10th August 2015 and 8th February

2016 and extended the maturity of the facility by one year including

additional payments on 8th August 2020 and 8th February 2021.

4. In the meantime, the CD also made payment of EUR 83,724.45. The

appellant thereafter issued legal notice calling upon the CD to make

payment of EUR 1,346,783.82 and the CD also issued letters on 5th March

2018 and 18th April 2018 acknowledging the payments due under the

facility and sought sometime for repayment. Appellant issued another letter

Company Appeal (AT) (Ins) No. 1245 of 2024 2 of9 to CD on 11.04.2019 terminating the agreement and reiterating total

outstanding dues as on 11.04.2019 as EUR 7292864.04 calling upon CD to

pay the entire outstanding amount not later than 26.04.2019.

5. It is further reflected that when no payment was made by the CD the

appellant filed a petition under section 7 of the Insolvency and Bankruptcy

Code, 2016 however the petition became infructuous as another petition

was admitted against the CD filed under section 7 of the IBC vide order

dated 20th December 2022 passed in CP(IB) No. 38 of 2020 and Mr. Kuresh

Hatim Khambati was appointed as the Interim Resolution Professional.

6. The appellant filed its claim under regulation 8 of the Insolvency and

Bankruptcy Board of India (Insolvency Resolution Process for Corporate

Persons) Regulations, 2016 under Form C for an amount of EUR

8284427.15, however, the RP admitted the claim of the appellant in part

only for INR 11,14,28,564/-. The appellant made several Communications

with the RP and when no fruitful result was achieved he moved an

application bearing IA No 997 of 2023 challenging the IRP decision of

partially rejecting the claim of the appellant and the said application has

been rejected by learned Tribunal by passing the impugned order.

7. In the meantime, after filing of the appeal the adjudicating authority

has approved the resolution plan submitted by successful resolution

applicant on 16th July 2024 and in this connection and IA bearing IA

number 5201 of 2024 was moved by the appellant and this appellate

tribunal on 30, July 2024 passed the order that any distribution made in

the resolution plan approved by the adjudicating authority shall abide by

the result of the appeal.

Company Appeal (AT) (Ins) No. 1245 of 2024 3 of9

8. Learned Counsel for the appellant submits that the adjudicating

authority has committed a manifest illegality in rejecting the application

moved by the appellant on the ground that the RP has admitted the claim of

the appellant to the extent up to which the appellant is yet to receive the

amount due to default which has been insured and also on the ground that

an action for recovery of the loan amount is to be taken within a certain

stipulated time and that the date of default and notice have clearly exceeded

the period of limitation.

9. It is vehemently submitted that the learned adjudicating authority has

not considered that the claim of the appellant has been rejected by the RP

on merits and not on the issue of limitation. Elaborating this submission, it

is further submitted that had the claim of the appellant be barred by

limitation then there was no question of accepting part of the claim by the

RP.

10. It is also submitted that the issue of limitation was not at all an issue

before the RP, while considering the claim of the appellant nor an averment

in any of the pleadings of the RP before the Ld. NCLT.

11. It is also submitted that the RP as well as the adjudicating authority

failed to understand that the default of the corporate debtor would not

automatically trigger indemnity payment under the buyer credit cover and in

the event of default of the corporate debtor the appellant is under certain

circumstances entitled to an indemnity payment being a portion of the loan

amount under the buyer credit cover, is irrespective of whether the

appellant has been indemnified by the Federal Republic of Germany or not,

the appellant is obliged to enforce the entire outstanding claim against the

Company Appeal (AT) (Ins) No. 1245 of 2024 4 of9 corporate debtor and all appropriate measures including filing of proof of

claim in Form C to collect the entire loan amount in relation to such claims

from the corporate debtor. However, this has not at all was considered by

the adjudicating authority.

12. It is further submitted that adjudicating authority has also not

considered the fact that the Federal Republic of Germany has partly

indemnified the appellant under the buyer credit guarantee Policy and this

does not imply that the contractual claims for payment against the

corporate debtor would be extinguished or finally settled. In fact the

adjudicating authority has not considered various clauses of buyer credit

guarantee deed and without discussing anything has simply approved the

decision taken by the RP.

13. It is further submitted that the adjudicating authority has also not

considered the fact that any payment received by the appellant from the

corporate debtor or any other third party after indemnification is paid under

the buyer credit guarantee will be passed on to the Federal Government of

Germany and without discussing this vital aspect of the matter the

application of the appellant has been dismissed. Request has been made to

set aside the impugned Judgment and to accept the claim of the appellant.

14. Learned Counsel for the respondent No.1/ RP at first attempted to

defend the impugned judgement and the decision of the RP on the ground

that the appellant cannot receive payment from two sources with regard to

the same claim, however when confronted as to how the limitation issue has

been considered by the tribunal without discussing the various dates on

which the claim has arisen, filed and preferred by the appellant and how the

Company Appeal (AT) (Ins) No. 1245 of 2024 5 of9 part of the claim has been admitted by the RP if the same was barred by

limitation and also as whether this issue was existing before the tribunal at

all and also whether any discussion has been made by the tribunal in the

background of various provisions of the buyer credit guarantee policy, he

fairly submits that it would be better if the matter is remanded back to the

adjudicating authority for deciding these issues afresh.

15. Learned Counsel for the respondent No. 2/ SRA is also of the view

that it would be better if the matter is remanded back to the adjudicating

authority for decision afresh.

16. We have heard learned Counsel for the parties and have perused the

record and notice that the application IA No. 997 of 2023 was moved by the

appellant before the learned tribunal with the following prayers.

a) To set aside the decision of the Respondent, partly rejecting the claim filed by the applicant in Form -C dated 06.01.2023 under Regulation 8 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016;

(b) To order and direct the Respondent-Resolution Professional of the CD, to admit the entire claim as per proof of claim dated 06.01.2023, filed by the applicant;

17. We also notice that by passing the impugned judgement learned

Tribunal has dismissed the application moved by the appellant at first on

the score that the claim appears to have not been presented within the

limitation time available for the same and also that proper documents have

not been provided to the resolution professional and the appellant has also

not allowed the COC members to see the clauses of insurance coverage

Company Appeal (AT) (Ins) No. 1245 of 2024 6 of9 policy. The relevant part of the judgement of the learned Tribunal is

reproduced as under: -

"8. From the submissions, documents submitted it is observed that the RP had not rejected the claim but admitted the claim to the extent up to which the applicant is yet to receive the amount due to default which has been insured. Indemnifying the insurer is a different step to be initiated by the applicant for which the RP has rightly taken up the claim examined and accepted the amount eligible. There two glaring omissions in the claim submission by the applicant. The date of default and notice have clearly exceeded the period of limitation and the submission of this application with prayers to direct the RP to accept the entire amount. If a loan has been granted and there is a default the period of exercising the action to recover runs in to a certain limitation period as per the Act irrespective of whether the applicant exercises his cover. Whether the claim was eligible to be considered is for the RP to examine the matter. No documents have been submitted and the details of when the amount of cover was invoked and amounts realised. On confidentiality the applicant has not shared the document to the RP. On this ground, the applicant cannot seek any redressal of his recovery from this Tribunal or before the RP who has to decide whether the claim is admissible. The applicant has further not even allowed the CoC members to see the clauses in the insurance coverage. If there was a right available for subrogation and if the applicant had the powers to lodge a claim or recover the amount, it exhausts on the date on which the limitation expires. From the documents submitted, arguments, there is no clear picture on the same and reason why a default was allowed to be prolonged for such a long time by the applicant without taking appropriate steps. The applicant's claim was accepted (even if beyond the period of limitation if claimed under subrogation rights) was partially accepted decided by the Resolution Professional.

9.Hence, we pass the following orders:

ORDERS Application is rejected".

18. We have noticed that learned Tribunal in order to arrive at a finding

that the claim of the appellant is time barred has not considered any date

nor has considered any document written by the parties to each other and

Company Appeal (AT) (Ins) No. 1245 of 2024 7 of9 without discussing anything on the merits and appreciating the evidence

available on record, has approved the decision taken by the RP. It is also

reflected that Learned Tribunal has not considered any clauses of the buyer

insurance policy and in fact no discussion has been made as to how the

Tribunal is arriving at a finding that the claim of the appellant is barred by

limitation or how the appellant would be unjustly benefitted in the

background of the indemnity amount received by him from the Federal

Government of Germany under buyer coverage insurance policy, even no

clause of this policy, which was available on record, has been considered. In

our considered view a casual approach appears to have been adopted by

Learned Tribunal while disposing of the application moved by the appellant.

19. Ld. Counsel for the Respondent No.1 and 2 have already fairly

conceded that it is a case which should be remanded back to the Learned

Tribunal for decision afresh and we are also of the same view that since the

Learned Tribunal has not discussed any factual matrix in order to arrive at

the findings given in the impugned judgment, it is a fit case which should be

sent back to the Ld. Tribunal for deciding the issues emerging between the

parties afresh.

20. Thus for the reasons aforesaid the impugned order passed by the

adjudicating authority may not be allowed to stand and is hereby set aside.

21. The appeal filed by the appellant is disposed of in terms that learned

tribunal shall dispose of the IA No.997/NCLT/AHM/2020 moved by the

appellant 'afresh' after providing reasonable opportunity of being heard to

the parties. For this purpose, the IA No.997/NCLT/AHM/2020 stands

revived before Ld. Tribunal.

Company Appeal (AT) (Ins) No. 1245 of 2024 8 of9

22. Ld. Tribunal shall also make all sincere efforts to dispose of the

aforesaid application (IA No.997/NCLT/AHM/2020) within two months from

the first appearance of the parties before it.

23. The parties shall remain present before the Ld. Tribunal on

15.12.2025.

24. There is no order as to costs.

25. IA's if any are also disposed of.

[Justice Mohd. Faiz Alam Khan] Member (Judicial)

[Naresh Salecha] Member (Technical)

New Delhi.

04.12.2025.

sr

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