The bank had moved the dedicated bankruptcy court against the decision of the company’s insolvency resolution professional to reject its claim and not include the bank in the Committee of Creditors (CoC). Yes Bank, in its December 2021 reply to a query from the resolution professional, had said that the developer had not defaulted in repayment of its loan and the bank had not invoked the corporate guarantee provided by the corporate guarantor. However, Yes Bank insisted on accepting its claims from the resolution professional.
Advocate Shyam Kapadia, representing the bank, had submitted that the maturity of the claim, or the default in the claim or the invocation of the guarantee to claim the amount, has no nexus with the filing of the claim.
To counter this, Advocate Nausher Kohli, representing the resolution professional of the company, relied upon another judgment of the NCLAT, in which the Court had taken a contrary view, holding that uninvoked corporate guarantees as per the provisions of the IBC should be treated as claims. cannot be considered as such. Therefore, it should not be included in the claims list maintained and updated by the solution professional.
The Mumbai bench of NCLT comprising Judicial Member HV Subba Rao and Technical Member Anuradha Sanjay Bhatia dismissed the bank’s plea after hearing the arguments of both the parties and considering the matter.
The Bench has observed that the resolution professional has not committed any illegality or irregularity in rejecting the bank’s claim on the basis of unsolicited guarantee in respect of the standard account of the original borrower and his decision is in accordance with the prescribed law. From Supreme court,
Ashish Pyasi, associate partner, Dheer & Dheer Associates, said guarantees given by companies to bankers pose a challenge when a company goes into insolvency proceedings.
Pyaasi said, “The bank has to invoke the first guarantee for any kind of claim and if the same is not done before the commencement of the resolution process, then after the commencement of the moratorium, the bank cannot invoke such guarantee Huh.”
“It is settled law that such claims cannot be accepted. The resolution professional has to examine the claim from this point of view also and such claim, if any, is required to be rejected as the resolution professional has has been dismissed in a manner. In this case,” he said.