Suresh Kumar Vs Central Bank of India (NCLAT Delhi)
Conclusion: Guarantor could not become the financial creditor just because a guarantee had been given against the loan advanced to the corporate debtor. It had to be shown that the loan was paid by the guarantor when the corporate debtor failed to discharge its liability then only they could step into the shoes of the creditor and file claim as financial creditor in the insolvency of the corporate debtor.
Held: In the instant case, the corporate debtor was admitted into the insolvency on an application filed by the operational creditor under section 9 of the IBC. The Interim Resolution Professional was appointed who constituted the CoC comprising only of unsecured creditors. Thereafter, the Central Bank of India filed its claim before the IRP as a secured creditor. The bank asked several information from the IRP regarding admission of the claims of the unsecured creditors. The IRP sent a report in which two more unsecured financial creditors, the appellants herein, were included in the CoC on the ground that they had given personal guarantee to the applicant bank for securing the loan advanced to the corporate debtor. Their claims were admitted on the basis of the recovery certificate issued against them by the DRT on the basis of a recovery application filed by the bank. An intervention Application was filed by the applicant in which direction for reconstituting the CoC was sought. The Adjudicating Authority allowed the said IA and held that since the appellants had not paid anything to the creditor, they could not be members of the CoC. Appellants submitted that the Adjudicating Authority had committed an error by misinterpreting section 140 of the Indian Contract Act. As per this provision, surety can step into the shoes of the creditor either repaying the loan amount or performing the act for which the principal debtor was liable. It was contended that however no payment was made in the case but in case the bank proceeded to dispose of the mortgaged property of the appellants, it would tantamount to fulfilling of performance in repayment of the loan. Per contra, Respondent submitted that appellant who had given Personal Guarantee to the loan obtained by the Corporate Debtor from the Central Bank of India, had not paid any amount, even though Decree had been issued by DRT, hence they could not claim to become Financial Creditor of the Corporate Debtor. It was held that guarantor could not become the creditor just because a guarantee had been given against the loan advanced to the corporate debtor. It had to be shown that the loan was paid by the guarantor when the corporate debtor failed to discharge its liability then only they could step into the shoes of the creditor and file claim as financial creditor in the insolvency of the corporate debtor. In the absence of payment by the appellants , they could not be treated as financial creditor therefore it was observed that no error was committed by the Adjudicating Authority and tribunal dismissed the appeal.
