When the Corporate Debtor is a Guarantor and when the Corporate Guarantee has never been invoked prior to the commencement of the CIRP, as on the date of filing of the Claims, the Right to Payment has not accrued – IDBI Trusteeship Services Ltd. Vs. Mr. Abhinav Mukherji – NCLAT New Delhi
The main issues which arise in these Appeals are:
(a) Whether the Adjudicating Authority was right in applying the ratio of Anuj Jain (IRP of Jaypee Infratech Ltd.) [2020] ibclaw.in 06 SC to the facts of the attendant case and holding that the Appellants are not Financial Creditors in view of the fact that there was no direct disbursal of amount to the Corporate Debtor/Guarantor.
(b) Whether an individual Homebuyer has the locus to challenge the admission of a Claim of another Creditor/Financial Creditor. Whether the filing of the said Application had to be done through the Authorized Representative (AR) only.
(c) Whether the Appellant can make a Claim on the basis of the Guarantee Deed which was never invoked pre-commencement of the CIRP, and remained uninvoked even as on the date of filing of the Claim, thereby meaning that Right to Payment has not yet accrued.
(d) Whether the Appellants are Related Parties of the Corporate Debtor. Whether the Appellants were in a position to control the affairs of the Corporate Debtor, to fall within the ambit of the definition of Related Party as defined under Section 5(24) of the Code.