Pradeep Kumar Goenka vs Subham Capital Pvt Ltd & Ors

Shubham Capital Pvt. Ltd. & Ors. ...Respondents

Present:

For Appellant : Though appeared, not marked presence

ORDER

24.01.2020 This Appeal has been preferred by the erstwhile 'Resolution

Professional' against the observations made in paragraphs 33 and 34 of the

impugned order dated 20th December, 2019, which reads as under:

"33. Admittedly, corporate guarantee has been issued by

the corporate debtor and it cannot be considered as

a debt due and payable then the question arises as

to whether this can be ignored at all? In our

considered view, this cannot be done for the simple

reason that some financial commitment exists in law

which may have implications for viability and

implementation of resolution plan. Resolution

applicant has to submit a plan which should be

prepared on the basis of information memorandum

provided to him by the resolution applicant in

[Type here] 2

consultation/after approval of CoC. If details

uninvoked corporate guarantee(s) are not disclosed,

then a situation may arise in future whereby the

resolution applicant may not implement the

resolution plan and back out in case guarantee is

invoked. As per regulation reproduced herein

before, it is apparent that the corporate guarantees

given in favour of corporate debtor are only to be

disclosed in a specific manner. No specific clause as

regard to disclosure of corporate guarantee issued

by the corporate debtor either to an independent

party or to a related party is mentioned. However,

as stated earlier, non-disclosure of such information

relating to such guarantee may result into failure of

resolution plan or some other unintended

consequences, such as, litigation etc. Thus, to avoid

the happening of such events, in our considered

view, the information relating to such guarantee

given must be given in the information memorandum

as per clause 36(2)(1) which would take care of all

eventualities.

34. It is also noted that the RP has included corporate

guarantee issued in favour of ICICI Bank only but

as per information memorandum at page 78 of the

Paper Book, it appears that corporate debtor has

Company Appeal (AT) (Insolvency) No. 107 of 2020 3

also issued a corporate guarantee in relation to the

same entity i.e. Skipper Furnishings Pvt. Ltd. in

favour of Magma Fincorp Ltd. The value of such

corporate guarantee is Rs. 75 Lakh. However, the

said guarantee has not been considered in arriving

as a claim or in arriving of voting percentage. Hence

the action of RP appears to be contradictory and

titled in favour of ICICI Bank"

From bare reading of the aforesaid paragraphs, we find that there is no

individual aspersion against the Appellant, it is about the action which has been

declared to be contradictory or tilting which resulted into different unintended

consequences.

So far as the observation made in paragraph 48 of the impugned order is

concerned, whether one or another person has filed the claim or not, is a

question of fact and we are not going to interfere with such finding as the facts,

even if wrongly stated, does not amount to causing any aspiration to the

erstwhile 'Resolution Professional', who has moved this Appeal.

The Appeal is accordingly dismissed. No costs.

[Justice S.J. Mukhopadhaya] Chairperson

[ Shreesha Merla ] Member (Technical)

/ns/gc/

Company Appeal (AT) (Insolvency) No. 107 of 2020