Dena Bank vs West Haryana Highways Projects Private Limited

1,"Total Amount

of Debt

Granted

Date(s) of

Disbursement","Principal Amount due as on 26.11.2018:

INR 40,84,23,304.64/-

Interest Amount (including penal interest) as on 26.11.2018: INR 49,65,74,269.07/-

Total amount due as on 26.11.2018: INR 90,49,97,573.71/-

The amount of debt has been firstly disbursed on 04.10.2008 and thereafter on various dates

(statement attached) in lieu of Common Agreement dated 02.05.2008, Second Supplementary

Agreement to Common Agreement dated 31.01.2014 and conversion of interest due to funded

interest term loan.

Â,,

Notice of the aforesaid application was issued to the Financial Creditor. There is a candid admission of the Financial Creditor in para 5 of the reply,,

to the application that claim was filed by it against M/s. Era Infra Engineering Limited as on 08.05.2018 amounting to INR 84,23,36,372.88 inclusive of",,

the defaulted amount and interest accrued up to 08.05.2018. However, only INR 82,10,82,704.93 has been admitted by the Resolution Professional",,

and INR 2,12,53,667.95 has not been admitted for want of documents and hence, stands outstanding.",,

A glance on the aforesaid table as well as candid admission of the Financial Creditor makes it patent that the Financial Creditor has already lodged,,

its claim before Mr. Rajiv Chakraborty, IRP towards the facilities disbursed by the Financial Creditor to the Corporate Debtor. The said claim of the",,

Financial Creditor was entertained by Mr. Rajiv Chakraborty, IRP and has been included in the aforesaid list and admitted by him as is evident from",,

the list itself. At this juncture we must notice the complaint made by Financial Creditor that there lies a substantial amount of money which is yet to be,,

recovered apart from the abovesaid admitted claim by the Resolution Professional. We cannot in summary proceedings determine the amount due,,

particularly when documents supporting the claim made by it are not available or produced. This function is required to be performed by the,,

Information Utility which is not yet fully functional. Therefore, Resolution Professional may ask the ex-promoter/director of the Corporate Debtor for",,

any such correction if need be and act accordingly by placing it before the Financial Creditor as it is only fair to do so.,,

Therefore, the question that arises for consideration is whether the same claim which has been agitated in one CIR Process could be made the",,

basis for filing an application under Section 7 of the Code for triggering another CIR Process. The question is no longer res integra and the answer is,,

in negative. In, Dr. Vishnu Kumar Agarwal v. M/s. Piramal Enterprises Ltd., Company Appeal (AT) (Insolvency) No. 346 of 2018 decided on",,

08.01.2019, the Learned Appellate Tribunal held that:",,

......However, once for same set of claim application under Section 7 filed by the 'Financial Creditor' is admitted against one of the 'Corporate Debtor'",,

('Principal Borrower' or 'Corporate Guarantor(s)'), second application by the same 'Financial Creditor' for same set of claim and default cannot be",,

admitted against the other 'Corporate Debtor' (the 'Corporate Guarantor(s) or the 'Principal Borrower'). Further, though there is a provision to file joint",,

application under Section 7 by the 'Financial Creditors', no application can be filed by the 'Financial Creditor' against two or more 'Corporate Debtors'",,

on the ground of joint liability ('Principal Borrower' and one 'Corporate Guarantor', or 'Principal Borrower' or two 'Corporate Guarantors' or one",,

'Corporate Guarantor' and other 'Corporate Guarantor'), till it is shown that the 'Corporate Debtors' combinedly are joint venture company.""",,

On the basis of facts, statutory law and precedents discussed above it is evident that the claim lodged by the petitioner-Bank before Mr. Rajiv",,

Chakraborty, IRP of that Company (M/s. Era Infra Engineering Limited) has already been collated and admitted. This cannot be again made the basis",,

for triggering Corporate Insolvency Resolution Process in the present proceeding and it is not permissible in law as laid down in Dr. Vishnu Kumar,,

Agarwal case (supra).,,

Therefore, on account of duplicacy of the claims the petition cannot be entertained.",,

In the order dated 15.07.2019 applications being C.A. No. 987(PB)/2019 & C.A. No. 960/(PB)/2019 were ordered to be heard on 01.08.2019.,,

Thereafter on 01.08.2019 learned counsel for the Financial Creditor sought time of file application for amendment of the original petition with respect,,

to the claimed amount and the case was ordered to be listed for further consideration on 27.08.2019. On 09.08.2019 at the time of pronouncement of,,

the order we preferred to prepone the date to today particularly when the issue is covered by the judgment in Dr. Vishnu Kumar Agarwal's case,,

(supra). Some submissions have been made at the time of pronouncement of the order which did not persuade us to take a view contrary to the one,,

taken by the learned Appellate Tribunal rendered in in Dr. Vishnu Kumar Agarwal's case (supra). Accordingly, the applications being C.A. No.",,

987(PB)/2019 & C.A. No. 960/(PB)/2019 stand disposed of.,,

As a sequel to the above discussion this petition fails and the same is dismissed.,,