The bank had moved the dedicated bankruptcy court against the company’s insolvency resolution professional’s decision to reject the claim and not include the bank in the committee of creditors (CoC). Yes Bank, in its December 2021 response to a query from the resolution professional, had stated 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 the resolution professional to admit its claims.
Advocate Shyam Kapadia, representing the bank, had submitted that the maturity of claim, or default of claim or invocation of guarantee for claiming the amount has no nexus with filing of claim.
To counter this, advocate Nausher Kohli, representing the company’s resolution professional, relied upon another judgement of the NCLAT, wherein the court took a contrary view stating that the uninvoked corporate guarantee cannot be considered as a claim as per the provisions of the IBC. Hence, not to be included in the list of claims maintained and updated by the resolution professional.
The Mumbai bench of NCLT, composed of judicial member H V Subba Rao and technical member Anuradha Sanjay Bhatia, after hearing the submissions on both sides and perusing the matter, dismissed the bank’s plea.
The bench has taken a view that the resolution professional has not committed any illegality or irregularity in rejecting the claim of the bank based on an uninvoked guarantee in respect of the standard account of the principal borrower and his decision is in accordance with the law laid down by the Supreme Court.
Ashish Pyasi, associate partner at Dhir and Dhir Associates, said the guarantees given by the companies to bankers pose a challenge the moment the company goes into insolvency proceedings.
“To make any claim, the first guarantee has to be invoked by the bank and in the event the same is not done before the commencement of the resolution process, then after initiation of moratorium, banks cannot invoke such guarantees,” said Pyasi.
“It is a settled law that such claims cannot be admitted. The resolution professional will have to examine the claim from this perspective also and in the event there is any such claim being made then the same needs to be rejected as rightly rejected by the professional in this case,” he added.