Inclusion in CoC and allow claims based on Corporate Guarantees given by the Corporate Debtor for third party debts – Ascot Realty Pvt. Ltd. Vs. Ajay Kumar Agarwal, IRP of RDH Technologies Pvt. Ltd. – NCLAT New Delhi

NCLAT held that the learned Counsel for the OBC/PNB has rightly argued that in the present matter, if the guarantee issued by Corporate Debtor is perused, the Corporate Debtor had guaranteed repayment of debts and the guarantees were executable against the Corporate Debtor which is a totally different case in case of mortgage where the Creditor has to proceed  against  the  mortgaged  property  and  cannot  directly proceed against the debtor. The Counsel for Appellant argued that the guarantees were given during pendency of recovery proceedings. The third party was advanced debt which was admittedly given by the Financial Creditor to the said third party. Even if Corporate Debtor issued guarantee in recovery proceeding for the financial debt of third party and in default the said guarantee/s have been invoked by the Financial Creditor, the Corporate Debtor is liable to pay the amount being amount of liability in respect of guarantee issued which falls in the definition of Section 5(8)(i) of IBC. For above reasons, we agree with the Adjudicating Authority that inclusion of entire claim of Oriental Bank of Commerce (now PNB) and India Bulls (Respondent No.3) and the determination of the voting percentage of the members of COC on the basis of admitted claims of these Financial Creditors, is legal and proper.

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