No Acts & Articles mentioned in this case
CIVIL APPEAL NOS. 8512-8527 OF 2019 and connected cases
INDEX OF JUDGMENT
Sl. No. Contents Page
1. Introductory 1-3
2. Brief Outline and the Issues Involved 3-5
3. Parties and their respective roles and
interest in the matter
6-7
4. The transactions in question 8-11
5. The relevant factual and background
aspects
11-18
6. The Application by Interim
Resolution Professional and the
order passed by NCLT
18-24
7. Appeals before NCLAT: the impugned
order
24-29
8. The relevant provisions 29-37
WHETHER THE TRANSACTIONS IN QUESTION ARE
PREFERENTIAL:
9. Broad features of rival contentions
and submissions
38-54
10. Insolvency and Bankruptcy Code,
2016: historical background, objects,
scheme and structure of the relevant
parts
54-58
11. Preferential transaction at a relevant
time: concept and connotations
58-64
12. Analysing Section 43 of the Code 64-74
13. Whether impugned transactions are
preferential, falling within the ambit
of sub-section (2) of Section 43 IBC
74-80
14. The requirements of sub-section (4) of
Section 43 IBC - related party and look-
back period
80-89
15. Ordinary course of business or
financial affairs
90-98
16. The concern expressed by lenders of
JAL is legally untenable
99-100
(i)
17. Summation: The transactions in
question are hit by Section 43 IBC
100
18. Search and commandeering of
preference at a relevant time
101-104
19. Other aspects of the application
made by IRP – allegations of
transactions being undervalued and
fraudulent
104-107
WHETHER LENDERS OF JAL COULD BE CATEGORISED AS
FINANCIAL CREDITORS OF JIL
20. Preliminary and background 107-109
21. Reasoning and Findings of NCLT 110-114
22. Rival submissions 114-130
23. Unique position of financial
creditor- as explained in Swiss
Ribbons
130-134
24. Financial debt - ratio of Pioneer
Urban
134-147
25. The expressions “means and
includes” in the definition clauses -
effect
147-152
26. The essentials for financial debt and
financial creditor
152-158
27. The respondent mortgagees are not
the financial creditors of corporate
debtor JIL
158-171
28. Summation on second issue 171
29. Conclusion 171-172
Acknowledgment 172
(ii)
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 8512-8527 OF 2019
ANUJ JAIN INTERIM RESOLUTION
PROFESSIONAL FOR JAYPEE
INFRATECH LIMITED ……. Appellant(s)
Versus
AXIS BANK LIMITED ETC. ETC. ……. Respondent(s)
WITH
CIVIL APPEAL NOS. 6777-6797 OF 2019
CIVIL APPEAL NOS. 9357-77 OF 2019
(ARISING OUT OF DIARY NO. 32881 OF 2019)
JUDGMENT
Dinesh Maheshwari, J.
Introductory
1.These appeals are essentially directed against the common order dated
01.08.2019 as passed by the National Company Law Appellate Tribunal, New
Delhi
1
in a batch of appeals preferred by various banks and financial
institutions whereby, the Appellate Tribunal set aside the order dated
16.05.2018, passed by the Adjudicating Authority, the National Company Law
1 Hereinafter also referred to as ‘the Appellate Tribunal’ or ‘NCLAT’
1
Tribunal, Allahabad Bench
2
on the application moved by the Interim Resolution
Professional
3
in the Corporate Insolvency Resolution Process
4
concerning the
Corporate Debtor Company viz., Jaypee Infratech Limited
5
seeking avoidance
of certain transactions, whereby the corporate debtor had mortgaged its
properties as collateral securities for the loans and advances made by the
lender banks and financial institutions to Jaiprakash Associates Limited
6
, the
holding company of JIL, as being preferential, undervalued and fraudulent, in
terms of Sections 43, 45 and 66 of the Insolvency and Bankruptcy Code,
2016
7
.
1.1.It may be noticed at the outset that the batch of appeals decided by the
impugned common order dated 01.08.2019 also comprised of two appeals
filed by the lenders of JAL, being Comp. App (AT) (Ins) No. 353 of 2018 and
Comp. App (AT) (Ins) No. 301 of 2018 that were preferred against the orders
passed by NCLT on 09.05.2018 and 15.05.2018 respectively, whereby NCLT
approved the decision of IRP rejecting the claims of such lenders of JAL to be
recognized as financial creditors of the corporate debtor JIL on the strength of
the mortgage created by the corporate debtor, as collateral security of the debt
of its holding company JAL. These two appeals also came to be allowed as
per the result recorded in the impugned order dated 01.08.2019, though the
2 Hereinafter also referred to as ‘the Tribunal’ or ‘NCLT’ or ‘the Adjudicating Authority’.
3 ‘IRP’ for short.
4 ‘CIRP’ for short.
5 ‘JIL’ for short; also referred to as ‘the corporate debtor’.
6 ‘JAL’ for short.
7 Hereinafter also referred to as ‘the Code’ or ‘IBC’.
2
entire discussion and the final conclusion therein had only been in relation to
the order dated 16.05.2018 that was passed by NCLT on the application for
avoidance filed by IRP. The appellant of Civil Appeal D. No. 32881 of 2019
8
,
IIFCL, apart from raising other contentions, has also questioned this aspect of
the order impugned that the aforesaid two appeals, involving the question as
to whether the lenders of JAL could be categorised as financial creditors of JIL
for the purpose of IBC, have been allowed by NCLAT without recording any
findings and without any discussion in that regard.
Brief Outline and the Issues Involved
2.Before proceeding further, we may draw up a brief outline of the subject-
matter and the issues involved in these appeals.
2.1.As shall be noticed hereafter later, the CIRP concerning the corporate
debtor JIL has already undergone several rounds and circles of proceedings in
NCLT, NCLAT and at least twice over in this Court.
2.2.For what has been indicated in the introduction, it is evident that two
major issues would arise in these appeals. One, as to whether the transactions
in question deserve to be avoided as being preferential, undervalued and
fraudulent, in terms of Sections 43, 45 and 66 of the Code; and second, as to
whether the respondents (lender of JAL) could be recognized as financial
creditors of the corporate debtor JIL on the strength of the mortgage created
8 Now numbered as Civil Appeal Nos. 009357-77 of 2019
3
by the corporate debtor, as collateral security of the debt of its holding
company JAL.
2.3.For a preliminary insight into the first issue, suffice would be to notice
that during CIRP, the Interim Resolution Professional preferred an application
before the Adjudicating Authority seeking orders for avoidance of the
impugned transactions, whereby several parcels of land were put under
mortgage with the lenders of JAL, the holding company of JIL. The contention
of IRP, that the transactions in question were preferential, undervalued and
fraudulent within the meaning of Sections 43, 45 and 66 of the Code, were
accepted in part by the Adjudicating Authority, the NCLT, in its order dated
16.05.2018 and necessary directions were issued for avoidance of at least six
of such transactions. In other words, in relation to such six transactions, the
security interest was ordered to be discharged and the properties involved
therein were vested in the corporate debtor, with release of encumbrances.
The NCLAT, however, took an entirely opposite view of the matter and
upturned the order so passed by NCLT, while holding that the transactions in
question do not fall within the mischief of being preferential or undervalued or
fraudulent; and that the lenders in question (the lenders of JAL) were entitled
to exercise their rights under the Code. Aggrieved, the IRP, one of the creditors
of the corporate debtor JIL and the associations of home buyers, who have
invested in the proposed projects of JIL and JAL, have preferred these
4
appeals.
2.4.As regards the second issue, noticeable it is that during CIRP, two of the
respondent banks namely, ICICI Bank Limited and Axis Bank Limited, sought
inclusion in the category of financial creditors of JIL but IRP did not agree and
declined to recognize them as such. Being aggrieved by the decisions so
taken by IRP, the said banks preferred separate applications under Section
60(5) of the Code before NCLT while asserting their claim to be recognized as
financial creditors of the corporate debtor JIL, on account of the securities
provided by JIL for the facilities granted to JAL. The NCLT rejected the
applications so filed by the said banks, by way of its orders dated 09.05.2018
and 15.05.2018 respectively, while concluding that on the strength of the
mortgage created by the corporate debtor JIL, as collateral security of the debt
of its holding company JAL, the lenders of JAL could not be categorised as
financial creditors of JIL for the purpose of the Code. As already noticed, the
appeals against the said orders dated 09.05.2018 and 15.05.2018 are
purportedly allowed as per the result recorded in the impugned order dated
01.08.2019, but without any discussion in that regard. Aggrieved, one of the
lenders of the corporate debtor JIL, IIFCL (appellant of Civil Appeal D. No.
32881 of 2019) has also questioned this aspect of the order impugned while
asserting that such mortgagees cannot be taken as financial creditors of the
corporate debtor JIL.
5
Parties and their respective roles and interest in the matter
3.In view of the issues arising for determination in these appeals, with
several parties carrying different roles, status and interests, worthwhile it would
be to narrate at the outset, in brief, the relevant particulars of the key parties
involved as follows:
3.1.Jaypee Infratech Limited (JIL):
It is the corporate debtor company in whose relation CIRP is pending;
and the mortgage transactions concerning its properties were questioned in
the application filed by the Interim Resolution Professional. Such transactions
form the subject-matter of these appeals.
3.2.Jaiprakash Associates Limited (JAL):
It is the holding company of JIL; it had approximately 71.64% equity
shareholding in JIL as on 31.03.2017. The impugned mortgage transactions
were entered into in favour of its lenders.
3.3.Shri Anuj Jain:
He is the Interim Resolution Professional in CIRP concerning JIL who
moved the application for avoidance of the transactions in question. He is the
appellant in Civil Appeal Nos. 8512-27 of 2019.
3.4.Jaypee Greens Krescent Home Buyers Welfare Association; Jaypee
Kasa Isles Welfare Association; Jaypee Kensington Boulevard Apartments
Welfare Association; Garden Isle Welfare Association; Jaypee Klassic
Apartment Welfare Association; Jaypee Kube Buyers Welfare Association;
Wish Town Property Owners Welfare Society; KRH Buyers Association ABL
Workplace:
6
They are the associations of home buyers who have invested in the
projects of JIL and JAL. They are the appellants in Civil Appeal Nos. 6777-97
of 2019; and they also support the assertion of IRP that the transactions in
question cannot be countenanced.
3.5 India Infrastructure Finance Company Limited:
It is the financial creditor of the corporate debtor JIL and has filed Civil
Appeal in Diary No. 32881 of 2019 while asserting that the transactions in
question need to be avoided; and that the lenders of JAL related with such
transactions cannot be the financial creditors of JIL for the purpose of CIRP in
question.
3.6Axis Bank Limited; Standard Chartered Bank Limited; ICICI Bank
Limited; State Bank of India; United Bank of India; UCO Bank; The Karur
Vyasa Bank (P) Limited; L&T Infrastructure Finance Company Limited; Central
Bank of India; Canara Bank; Karnataka Bank Limited; IFCI Limited; Allahabad
Bank; Jammu & Kashmir Bank; South Indian Bank Limited; Bank of
Maharashtra and other banks and financial institutions:
They are the lenders of JAL in whose favour the properties of JIL were
put under mortgage by way of the impugned transactions. They oppose the
assertions of appellants while maintaining that the transactions in question are
not avoidable and are valid, investing them with the capacity of financial
creditors of JIL. They are the principal contesting respondents in these
appeals.
7
The transactions in question
4.Having taken note of the principal contesting parties and their respective
interests, it would also be worthwhile to take note of the relevant particulars of
the properties and the transactions involved in this dispute. It may be usefully
noticed that out of seven transactions that were questioned by IRP, the
Adjudicating Authority held that six of them were preferential, undervalued and
fraudulent and passed the orders for their avoidance while accepting the
contentions of IRP. It may also be observed that five out of these six
transactions were preceded by previous mortgage transactions for securing
the loans/facilities to JAL. The transactions in question, with previous
transactions and flow thereof, as given out during the course of submissions,
could be comprehensively viewed as under: -
4.1.The transactions in favour of the Consortium of Banks and Financial
Institutions:
Property/transaction in question Previous transaction/s and flow
thereof
Mortgage deed dated 29.12.2016 for
167.229 acres of land situated at Village
Chhalesar and Chaugan, Tehsil
Etmadpur, District Agra, Uttar Pradesh
executed by JIL in favour of Axis Trustee
Services Ltd. to provide an additional
security for term loans of Rs. 21081.5
crores sanctioned as a consortium to
JAL.
9
Initial mortgage deed dated
24.02.2015 released on 15.09.2015
and re-mortgaged on 15.09.2015
(changing facility amount from Rs.
3250 crores (appx.) to Rs. 24109
crores); thereafter released on
29.12.2016 and again re-mortgaged
on 29.12.2016 (changing facility
amount from Rs. 24109 crores to Rs.
23491 crores).
9 Hereinafter also referred to as ‘Property No. 1’
8
Mortgage deed dated 29.12.2016 for
167.9615 acres of land situated at
Village Tappal, Kansera and Jahangarh,
Tehsil Khair, District Aligarh, Uttar
Pradesh executed by JIL in favour of
Axis Trustee Services Ltd. to provide as
an additional security for term loans of
Rs.21081.5 crores sanctioned by the
consortium to JAL.
10
Initial mortgage deed dated
24.02.2015 released on 15.09.2015
and re-mortgaged on 15.09.2015
(changing facility amount from Rs.
3250 crores (appx.) to Rs. 24109
crores); thereafter released on
29.12.2016 and again re-mortgaged
on 29.12.2016 (changing facility
amount from Rs. 24109 crores to Rs.
23491 crores).
4.2.The exclusive mortgage transactions in favour of ICICI Bank Limited:
Property/transaction in question Previous transaction/s and flow
thereof
Mortgage deed dated 07.03.2017 for
158.1739 acres situated at Village
Jaganpur and Aurangpur, Uttar
Pradesh, executed by JIL in favour of
IDBI Trustee-ship Services Limited in
the capacity of security trustee for term
loan of Rs.1200 crores granted by ICICI
Bank Limited to JAL against the facility
agreement dated 25.05.2015.
11
Initial mortgage deed dated
12.05.2014 for 433.35 acres of land,
followed by release of land
admeasuring 240 acres vide release
deed dated 30.12.2015 along with
release of land admeasuring 35.03
acres vide release deed dated
24.06.2016. Further release of
158.1739 acres of land vide release
deed dated 07.03.2017 and thereafter
re-mortgaged on 07.03.2017.
Mortgage deed dated 07.03.2017 for
151.0063 acres situated at Village
Jikarpur, Tehsil Khair, District Aligarh,
Uttar Pradesh, executed by JIL in
favour of IDBI Trustee-ship Services
Limited in the capacity of security
trustee for term loan of Rs.1200 crores
Initial mortgage deed dated
12.05.2014 released on 07.03.2017
and re-mortgaged on 07.03.2017.
10 Hereinafter also referred to as ‘Property No. 2’
11 Hereinafter also referred to as ‘Property No. 3’
9
granted by ICICI Bank Limited to JAL
against the facility agreement dated
25.05.2015.
12
4.3.The exclusive mortgage transaction in favour of the Standard Chartered
Bank Limited:
Property/transaction in question Previous transaction/s and flow
thereof
Mortgage deed dated 24.05.2016 for
25.0040 acres of land situated at Village
Sultanpur, Sector-128, Noida, District
Gautam Budh Nagar, Uttar Pradesh
executed by JIL in favour of IDBI Trustee-
ship Services Ltd, as additional security,
against the facility agreement dated
29.08.2012 between Standard Chartered
Bank and JAL of Rs.400 crores. The
security was further extended for facility II
for Rs.450 crores on 27.12.2012; for
facility III for Rs.538.16 crores on
29.04.2015; for facility IV for Rs.81.84
crores on 29.04.2015 and for working
capital facility Rs.297 crores on
29.08.2012.
13
Initial mortgage deed dated
24.06.2009, extended by mortgage
deed dated 27.11.2012 (for
increased facility amount of Rs. 1300
crores as compared to Rs. 900
crores earlier).
Vide mortgage on 23.03.2013,
additional land admeasuring 25.0040
acres was added in the original land
parcel to secure increased facility
amount of Rs. 1750 crores as
compared to Rs. 1300 crores earlier
against the facility agreement dated
29.08.2012 for an amount of Rs. 400
crores. Security further extended for
Facilities II, III and IV as mentioned in
Column 1.
The extended mortgage deed dated
23.03.2013 was released vide
release deed dated 04.11.2015
(changing facility amount from
Rs.1750 crores to Rs. 1470 crores)
and re-mortgaged on 24.05.2016
(increasing facility amount from 1470
crores to Rs. 1767 crores).
12 Hereinafter also referred to as ‘Property No. 4’
13 Hereinafter also referred to as ‘Property No. 5’
10
4.4.The sixth transaction in question had been the exclusive mortgage
transaction in favour of State Bank of India that was not preceded by any
earlier transaction; the same had been as under:-
Mortgage deed dated 04.03.2016 for 90 acres of land situated at
Village Chaugan Tehsil Elmadpur, District Agra, Uttar Pradesh,
executed by JIL in favour of State Bank of India against the facility
agreement dated 26.03.2015 granting Short Term Loan Facility to
JAL of Rs.1000 crores.
14
4.5.Yet another transaction was questioned by IRP as being avoidable but
the Adjudicating Authority held the same to be not falling within the relevant
time as provided under Section 43 of the Code. The particulars of this
transaction are as follows:
Mortgage deed dated 12.05.2014 for 100 acres of land situated at
Village Tappal, Tehsil Khair, District Aligarh, Uttar Pradesh
executed by JIL in favour of ICICI Bank Limited against the facility
agreement dated 12.12.2013 granting Term Loan of Rs. 1500
crores and overdraft amount of Rs. 175 crores to JAL.
15
The relevant factual and background aspects
5.Having taken note of the principal parties to the dispute and the
transactions/properties involved, but before dilating on the issues, we may
briefly narrate the background in which the present CIRP is underway as also
the orders passed by this Court, for ensuring its completion in accordance with
law and towards the larger benefit of stakeholders.
14 Hereinafter also referred to as ‘Property No. 6’
15 Hereinafter also referred to as ‘Property No. 7’ (As regards this description, it is pointed out on
behalf of the respondent ICICI Bank that it had been of ‘Term Loan of Rs. 1500 crores under the
Corporate Rupee Loan Facility agreement and General Conditions dated 12.12.2013 and mortgage
deed was dated 10.03.2014’)
11
6.JAL is stated to be a public listed company with more than 5 lakh
individual shareholders. In the year 2003, JAL was awarded the rights for
construction of an expressway from Noida to Agra. A concession agreement
was entered into with the Yamuna Expressway Industrial Development
Authority. Coming on the heels of this project, JIL was set up as a special
purpose vehicle. Finance was obtained from a consortium of banks against
the partial mortgage of land acquired and a pledge of 51% of the shareholding
held by JAL. Housing plans were envisaged for the construction of real estate
projects in two locations of the land acquired, one in Wish Town, Noida and
another in Mirzapur. Several other aspects of the dealings by these
companies, their creditors and other stakeholders need not be dilated for the
present purpose.
6.1.The crucial and relevant part of the matter is that IDBI Bank Limited
instituted a petition under Section 7 of the Code before the NCLT, seeking
initiation of Corporate Insolvency Resolution Process against JIL, while
alleging that JIL had committed a default in repayment of its dues to the tune
of Rs. 526.11 crores. JIL filed its objections to the petition but later on,
withdrew the objections and furnished consent for resolution plan under the
provisions of the Code. On 09.08.2017, NCLT initiated the CIRP in respect of
JIL. An order of moratorium was issued under Section 14 by which, the
institution of suits and continuation of pending proceedings, including
execution proceedings were prohibited and an Interim Resolution Professional
12
was appointed. On 14.08.2017, IRP, in pursuance of the order of NCLT, called
for submissions of claims by financial creditors in Form-C, by operational
creditors in Form-B, by the workmen and employees in Form-E and by other
creditors in Form-F. On 16.08.2017, the Insolvency and Bankruptcy Board of
India made an amendment to its regulations and Regulation 9(a) was inserted
to include the claims by other creditors. On 18.08.2017, the Board released a
press note that the home buyers could fill in Form-F as they could not be
treated at par with financial and operational creditors.
6.2.The aforesaid position led to the proceedings in this Court that were
dealt with in a batch of petitions led by Writ Petition (Civil) No. 744 of 2017:
Chitra Sharma and Ors. v. Union of India and Ors. Several orders were
passed by this Court in the said batch of petitions from time to time, inter alia,
to the effect that IRP was permitted to take over management of JIL and was
directed to ensure that necessary provisions were made to protect the
interests of home buyers. Various orders were also made with directions to
JAL, as holding company of JIL, for making deposits in the Court, particularly
looking to the claim of refund being made by some of the home buyers. This
Court also took note of the facts that CIRP commenced on 09.08.2017; the
statutory period of 180 days for concluding the CIRP had come to an end; and
even the extended statutory period of 90 days also ended on 12.05.2018 but
then, by way of the Amendment Ordinance, 2018, the home buyers were
accorded the statutory recognition as financial creditors w.e.f. 06.06.2018.
13
While finally disposing of the matters on 09.08.2018, this Court took note of
the interest of home buyers as also the creditors of JIL and JAL, the status of
proceedings and the statutory provisions as then obtaining and ultimately
issued the following directions: -
“(i)In exercise of the power vested in this Court under Article
142 of the Constitution, we direct that the initial period of 180 days
for the conclusion of the CIRP in respect of JIL shall commence
from the date of this order. If it becomes necessary to apply for a
further extension of 90 days, we permit the NCLT to pass
appropriate orders in accordance with the provisions of the IBC;
(ii)We direct that a CoC shall be constituted afresh in
accordance with the provisions of the Insolvency and Bankruptcy
(Amendment) Ordinance, 2018, more particularly the amended
definition of the expression “financial creditors”;
(iii)We permit the IRP to invite fresh expressions of interest for
the submission of resolution plans by applicants, in addition to the
three short-listed bidders whose bids or, as the case may be,
revised bids may also be considered;
(iv)JIL/JAL and their promoters shall be ineligible to participate
in the CIRP by virtue of the provisions of Section 29A;
(v)RBI is allowed, in terms of its application to this Court to
direct the banks to initiate corporate insolvency resolution
proceedings against JAL under the IBC;
(vi)The amount of Rs 750 crores which has been deposited in
this Court by JAL/JIL shall together with the interest accrued
thereon be transferred to the NCLT and continue to remain
invested and shall abide by such directions as may be issued by
the NCLT.”
6.3.It had been during pendency of the aforesaid proceedings that the
application leading to present appeals came to be filed by IRP on 06.02.2018,
complaining against the transactions in question. However, before taking note
of the matters involved in such application filed by IRP and, for completion of
14
the narration about the orders passed by this Court, we may also point out that
during the CIRP of JIL, an application came to be made by IDBI bank, for
excluding the period of pendency of the application for clarification regarding
the manner of counting of the votes of the concerned financial creditors, for the
purpose of the period of 270 days for completion of corporate insolvency
resolution process but, during the pendency of such application, NCLT, by its
order dated 06.05.2019, called upon the authorities and the representatives of
allottees and others to file reply on the necessity to proceed further with CIRP
for considering the resolution plan received from the concerned bidder. The
IDBI Bank assailed this order of NCLT by way of an appeal before the NCLAT
that came to be decided on 30.07.2019 whereby, NCLAT granted relief to
exclude the period from 17.09.2018 to 04.06.2019 for the purpose of counting
270 days of CIRP period and issued consequential directions. This led to
further appeals in this Court
16
, which were considered and decided on
06.11.2019.
6.3.1.In the order dated 06.11.2019, we took note of the fact that CIRP in
relation to JIL stood revived in view of the directions in Chitra Sharma (supra)
as also the amendments brought about in IBC. In the peculiar, rather
extraordinary, situation obtaining in the matter, we passed the orders under the
plenary powers so as to ensure that an attempt was made for revival of the
corporate debtor JIL, lest it was exposed to liquidation process while taking
16 Being Civil Appeal No. 8437 of 2019 [@ D No. 27229 of 2019]: Jaiprakash Associates Ltd. & Anr. v.
IDBI Bank Ltd. and connected case
15
note of the unanimity amongst the parties that liquidation of JIL must be
eschewed; and while also taking note of the time limit for completion of
Insolvency Resolution Process as per third proviso to Section 12(3), which
came into effect from 16.08.2019. In the given circumstances, we passed the
following order for the purpose of substantial and complete justice to the
parties and in the interest of all the stakeholders:
“i)We direct the IRP to complete the CIRP within 90 days from
today. In the first 45 days, it will be open to the IRP to invite
revised resolution plan only from Suraksha Realty and NBCC
respectively, who were the final bidders and had submitted
resolution plan on the earlier occasion and place the revised
plan(s) before the CoC, if so required, after negotiations and
submit report to the adjudicating authority NCLT within such time.
In the second phase of 45 days commencing from 21
st
December,
2019, margin is provided for removing any difficulty and to pass
appropriate orders thereon by the Adjudicating Authority.
ii)The pendency of any other application before the NCLT or
NCLAT, as the case may be, including any interim direction
given therein shall be no impediment for the IRP to receive and
process the revised resolution plan from the abovenamed two
bidders and take it to its logical end as per the provisions of the I &
B Code within the extended timeline prescribed in terms of this
order.
iii)We direct that the IRP shall not entertain any expression of
interest (improved) resolution plan individually or jointly or in
concert with any other person, much less ineligible in terms of
Section 29A of the I & B Code.
iv)These directions are issued in exceptional situation in the
facts of the present case and shall not be treated as a precedent.
v)This order may not be construed as having answered the
questions of law raised in both the appeals, including as
recognition of the power of the NCLT / NCLAT to issue direction or
order not consistent with the statutory timelines and stipulations
specified in the I & B Code and Regulations framed thereunder.”
17
17 It may also be noticed that by another order dated 03.02.2020, while accepting the reasons stated
in an application filed by the IRP pointing out various difficulties and unavoidable circumstances which
16
7.Having thus referred to the orders previously passed in relation to the
CIRP in question, we may, for complete narration of the orders passed by this
Court, also refer to the fact that in this batch of appeals, the extensive
arguments were finally concluded on 10.12.2019. Even while reserving the
orders, looking to the facts and circumstances of the case, we stayed the
operation of the order passed by NCLAT, insofar relating to the prayer of the
lender-banks of JAL for treating them as financial creditors of JIL. The relevant
part of the order dated 10.12.2019 reads as under: -
“Civil Appeal @ Diary No(s). 32881/2019
These appeals take exception to the decision of the National
Company Law Appellate Tribunal allowing the appeal(s) filed by
the lender-Banks of Jayprakash Associates Limited (JAL) claiming
to be financial creditors(s) of Jaypee Infratech Limited (JIL). The
National Company Law Tribunal had rejected that claim but we
find that in the impugned judgment, without dealing with the
reasons recorded by the National Company Law Tribunal, the
Appellate Tribunal allowed the appeal(s) filed by the stated lender-
Banks(s), who were claiming to be the financial creditor(s) of JIL.
After fully hearing counsel for the parties, prima facie, we are
of view that lender-Banks of JAL cannot be regarded as financial
creditor(s) of JIL. We would elaborate on this aspect in our final
judgment. Be that as it may, it is appropriate that we must stay the
operation of the impugned judgment(s) of the Appellate Tribunal
lest any confusion occurs in the revival process of JIL and the
constitution of Committee of Creditors thereof, in view of the
impugned order passed by the National Company Law Appellate
Tribunal. Ordered accordingly.
We clarify that the stay of operation is only in respect of order
passed on the application(s) moved by the lender-Bank(s) of JAL
before the National Company Law Appellate Tribunal for a
declaration that they be regarded as financial creditor(s) of JIL and
included in the Committee of Creditors of JIL.”
have delayed the culmination of proposal for approval of resolution plan, though submitted within the
time frame prescribed by this Court, we had extended the time by four weeks for approval of the
resolution plan, in the proceedings now being dealt with by the Principal Bench of NCLT at New Delhi.
17
The Application by Interim Resolution Professional and the order passed
by NCLT
8.Having thus referred to the orders already passed in relation to the CIRP
in question, we may now advert to the application filed by IRP forming subject-
matter of the first issue involved in these appeals.
9.The IRP, in terms of his duties under clause (j) of Section 25(2) of the
Code
18
, made the application under consideration before the Adjudicating
Authority stating, inter alia, that the corporate debtor was itself in dire need of
funds; and was facing severe liquidity crunch to complete the construction of
projects and deliver flats to home buyers as well as to honour the payment
obligations to financial creditors, including the Fixed Deposit Holders. It was
contended that JIL could have sold/mortgaged its unencumbered land to raise
funds to complete the construction of flats in a timely manner and fulfil its
obligation to its creditors and prevent value deterioration or erosion or
insolvency but then, the mortgages in question were created in a highly
questionable manner and in complete disregard to the interests of the creditors
and stakeholders of the corporate debtor. Also, that the mortgage of land was
18 The relevant parts of Section 25 read as under:
“Duties of resolution professional. - (1) It shall be the duty of the resolution
professional to preserve and protect the assets of the corporate debtor, including the
continued business operations of the corporate debtor.
(2) For the purposes of sub-section (1), the resolution professional shall
undertake the following actions, namely:-
*** *** ***
(j) file application for avoidance of transactions in accordance with Chapter III, if any;
…”
18
in nature of asset stripping and was entered with intent to defraud the creditors
of the corporate debtor without obtaining the approval of shareholders.
9.1.In opposition to the application, it was contended that the financial
position of the corporate debtor was very strong notwithstanding the temporary
financial crunch; that JAL was helping JIL in various ways and hence, creation
of impugned mortgages was not unusual, but merely reciprocal; and such
reciprocal accommodation cannot be termed without consideration. It was also
contended that no transaction which was permitted by law and entered into
transparently could amount to ‘carrying on business for a fraudulent purpose’.
It was further contended that the impugned mortgages had not been created
on account of any antecedent debt liability owed by the corporate debtor; they
had been within the ordinary course of business of corporate debtor and the
transferees; and were not within the statutory period of one year and,
therefore, Section 43 of IBC would not apply. It was maintained that the
transactions in question were reciprocal and could not be termed as without
consideration or undervalued. According to the contesting parties, when the
essential jurisdictional conditions were not satisfied, the provisions of Section
66 of IBC were not attracted.
10.The NCLT, after having heard the parties and having scanned through
the record, held that the transactions in question were to defraud the lenders
of the corporate debtor JIL, as 858 acres of unencumbered land owned by the
corporate debtor to secure the debt of the related party JAL was mortgaged in
19
the midst of the corporate debtor’s immense financial crunch, while continuing
with default towards the home buyers and financial creditors and after it had
been declared as Non Performing Asset
19
, in utter disregard to fiduciary duties
and duty of care to the creditors; and further that the mortgage of land was
created without any counter guarantee from the related party and with no other
consideration being paid to the corporate debtor. The Tribunal was of the view
that at the time when the mortgage was created, the corporate debtor was
already in default to its lenders and it was unlikely that its lenders would have
provided no-objection for creation of mortgages to secure the debt of a related
party as that would have compromised not only the recovery of their dues but
also the interests of thousands of home buyers waiting for their homes with
investment of their hard earned money. The Tribunal also observed that even
though the nominees of lenders attended the Board Meeting of the corporate
debtor in which decision to mortgage the land was taken, but that cannot be
treated as approval or no-objection of lenders, as the lenders invariably have
covenants in the loan agreement that require their approval for creating
interest in favor of any one of the unencumbered assets of the borrower.
Moreover, directors of the corporate debtor (JIL) and the related party (JAL)
were well aware of the fact that the corporate debtor was in default and had
been declared as NPA by several creditors. The Tribunal, thus, formed the
opinion that when the directors of the corporate debtor were fully aware that
19 ‘NPA’ for short
20
they were in the twilight zone and insolvency was imminent, they ought to
have exercised due diligence in minimizing the potential loss to the creditors
but they entered into such transactions which ex facie gave benefits to the
related party JAL, with a clear intent to defraud the creditors of JIL. The
Tribunal further observed that the land in question could have been sold to
generate cash that would have been sufficient to complete the construction of
flats and the home buyers are directly and adversely affected by such a
decision.
10.1.With respect to Section 43 of IBC, the NCLT held that the transaction of
creating a security interest by way of mortgage in favour of lenders of the third
party (JAL) on the unencumbered land of the corporate debtor without any
consideration or counter guarantee cannot be treated as transfer in the
ordinary course of business or financial affairs of the corporate debtor. Further,
it did not benefit either the business or finances of the corporate debtor in any
way and hence, was not covered under ‘financial affairs’. The Tribunal held
that the phrase under consideration cannot be interpreted to mean that the
ordinary course of business also includes the transferee’s ordinary course of
business because transferee can never do the transfer himself; and that the
words ‘the transfer made’ indicate that they relate to the transferor and not the
transferee. As regards ‘relevant time’ for the purpose of sub-section (4) of
Section 43 of the Code
20
, the Tribunal observed that the Code itself has
20 This “relevant time” for the purpose of avoidance of preferential transactions is now commonly
referred to as “look-back period”.
21
provided a retrospective effect to the provisions of Section 43(4)(a) wherein it
is stated that ‘it is given to a related party, during two years preceding the
insolvency commencement date’. This, according to NCLT, indicates that the
retrospective effect is laid down in the legislation itself and thus, the look-back
period for the transactions was made dependent on the insolvency
commencement date and not on the date when the Insolvency and Bankruptcy
Code came into effect (01.12.2016). The Tribunal, therefore, held that for
transactions of a related party, the look-back period was two years preceding
the insolvency commencement date and hence, the relevant period for
examining the transactions in question would be from 10.08.2015 to
09.08.2017 (date of commencement of CIRP).
10.2.The Tribunal made in-depth analysis of the facts of the case, particularly
those related with the transactions in question as also the provisions of law
applicable and, while rejecting the contentions urged on behalf of the opposing
parties, including JAL, observed and held as under:
“After the elaborate discussion, we have decided that impugned
transactions are preferential transactions as defined in the
subsection (2)(a) of Section 43 of insolvency and bankruptcy code
2016. We have found that corporate debtor Jaypee Infratech Ltd
(JIL) has by way of mortgage of unencumbered land created
security interest in favour of lenders of the Jaiprakash Associates
Ltd. (JAL), which happens to be the holding company of JIL,
without any consideration. We have also found that the corporate
debtor was facing liquidity crunch and their accounts were
declared as NPA and even after formation of Joint Lender Forum,
without obtaining approval from Joint Lender Forum,
unencumbered land of the corporate debtor has been mortgaged
in favour of lenders of JAL. There by this transfer has the effect of
22
putting the JAL, one of the creditors of JIL in a beneficial position
than it would have been in the event of distribution of assets being
made by section 53 of the code.
The said mortgage of immovable properties, i.e. of the
unencumbered land of the corporate debtor has been made
without any consideration to the corporate debtor. Therefore the
said transaction is covered under the umbrella of Sec 45(1) of the
Code and will be treated as an undervalued transaction as defined
under section 45 of the Code.
*** *** ***
In this case, we have found that impugned transactions are
covered under preferential transactions as defined in section 43(2)
(a) of the Code. Therefore, it cannot be said that section 45 does
not apply for these transactions.
The impugned mortgage of unencumbered land parcels of the
Corporate Debtor in favour of lenders of the JAL to create a
security interest are transactions between the Corporate Debtor,
lenders of JAL and JAL, who happens to be an Operational
Creditor of the Corporate Debtor.
It is true that the collateral security is common practice in loan
transactions. It is on record that in this case, the Corporate
Debtor was under liquidity crunch and its accounts were declared
NPA by LIC and other creditors. The Joint Lender Forum was
formed to deal with the situation. But the Corporate Debtor
entered into the transaction even without taking prior approval of
Joint Lender Forum and mortgaged its unencumbered land in
favour of the lenders of the JAL.
In the circumstances stated above it is clear that the impugned
preferential transactions are also undervalued transactions and
covered under section 45(1) of the Code. It is also clear that
these transactions are undertaken during the relevant period of 2
years from the date of initiation of Corporate Insolvency Process
as provided under section 46(1)(ii) of the Code. Therefore, this
issue is also decided in positive, in favour of applicant Resolution
Professional and against the Corporate Debtor.
In view of the above, it is clear that the mortgage of land of JIL in
favour of lenders of JAL, amounts to transfer of interest in property
of JIL for the benefit of its creditor i.e. JAL and putting it in a
beneficial position vis-à-vis other creditors is a preferential
transactions U/s 43(2)(a) & (b).
The transactions were executed within the look back period of two
years before the commencement of Insolvency proceeding and is
therefore covered U/s 43(4)(a). Further, transaction cannot be
23
treated is in ordinary course of business or financial affairs of
Corporate Debtor and is not excluded U/s 43(3).”
10.3.The Tribunal concluded in its order as follows:
“On the above basis, it is clear that the company application filed
by the Resolution Applicant deserves to be allowed. Hence, is
allowed.
ORDER
The company application filed by the Resolution Professional
under Sec. 66, 43 & 45 of the Insolvency and Bankruptcy 2016 is
allowed. The impugned transactions, details of which are given in
the schedule of the judgment are declared as fraudulent,
preferential and undervalued transactions as defined under
section 66, 43 and 45 of the Code respectively.
Transactions given in the following schedule of property have
been found as preferential, undervalued and fraudulent, therefore,
we pass the order for release and discharge of the security
interest created by the Corporate Debtor in favour of lenders of
the Jaiprakash Associates Ltd. under the provision of Section
44(c) of the Insolvency and Bankruptcy Code 2016. We also pass
an order under Section 48(a) of the Code that the properties
mortgaged by way of preferential and undervalued transactions
shall from now on be deemed to be vested in the Corporate
Debtor.”
21
Appeals before NCLAT: the impugned order
11.Assailing the aforesaid order passed by NCLT accepting the application
of IRP in relation to six of the mortgage transactions, the aggrieved parties
filed separate appeals before the Appellate Tribunal, the NCLAT. The Appellate
Tribunal took note of the facts of the case and the rival contentions and
21 In the schedule to the order aforesaid, NCLT gave out the description of six transaction with
particulars of the properties which were treated as preferential, undervalued and fraudulent and also
gave the description of one transaction that was not coming within the ambit of ‘relevant time’ per
Section 43 of the Code. (as fully taken note of in paragraph 4 and its sub-paragraphs under the
heading ‘Transactions in question’ ibid.).
24
proceeded to upturn the order passed by NCLT on the considerations as
indicated infra.
11.1.As regards the assertion of IRP that the transactions in question were
preferential transactions within the relevant time as envisaged by Section 43 of
the Code, the NCLAT observed that the corporate debtor had created interest
over its property, but such interest had not been created in favour of any
creditor or a surety or a guarantor for or on account of an antecedent financial
debt or operational debt or other liabilities owed by the corporate debtor and
hence, Section 43(2)(a) of the Code was not attracted. It was further observed
that the mortgages in question were made in the ordinary course of business
and financial affairs of the transferees, ruling out the applicability of Section 43
as such and hence, the Adjudicating Authority had no power to pass the order
under Section 44 of the Code. The Appellate Tribunal observed and held, inter
alia, as follows:
“62. In the present case, the ‘Corporate Debtor’ has created
interest on the property of the ‘Corporate Debtor’, but such
interest has not been created in favour of any creditor or a surety
or a guarantor for or on account of an antecedent financial debt or
operational debt or other liabilities owed by the ‘Corporate
Debtor’.
63. The aforesaid interest on the property of the ‘Corporate
Debtor’ has been created in all these cases with regard to
financial debt given by the Appellants to ‘Jaiprakash Associates
Ltd.’, which is not the ‘Corporate Debtor’.
64. Thus, it is clear that the interest on the property of the
‘Corporate Debtor’ has not been created in favour of the
Appellants- ‘Financial Creditors’ of an antecedent financial debt of
the Appellants owed by the ‘Jaypee Infratech Ltd.’ (‘Corporate
25
Debtor’). Therefore, we hold that clause (a) of sub-section (2) of
Section 43 is not attracted in any of the case of the Appellants
Bank, thereby none of the Appellants Bank come within the
meaning of ‘deemed to have given a preference’, as used in
Section 43. Therefore, the mortgage(s) created in their favour
cannot be annulled on the ground of preferential transaction in
terms of Section 43 (2) (a) of the ‘I&B Code’.
65. Clause (b) of sub-section(2) of Section 43 relates to transfer
under clause (a) of sub-section (2) of Section 43, which in effect
puts such creditor or a surety or a guarantor in a beneficial
position than it would have been in the event of a distribution of
assets being made in accordance with Section 53. As clause (a) of
sub-section (2) of Section 43 is not attracted, the question of
applicability of clause (b) of sub-section (2) of Section 43 does not
arise.
66. Apart from the aforesaid position of law in respect of
mortgage, in question, as per sub-section (3) of Section 43, for the
purposes of sub-section (2), “a preference shall not include the
transfer made in the ordinary course of the business or financial
affairs of the ‘Corporate Debtor’ or the transferee”. The mortgages
in question which were made in favour of the Appellants-Banks
and Financial Institutions have been made in ordinary course of
business and financial affairs of the transferee, as apparent from
the relevant facts.
67. Therefore, we hold that Section 43 is not attracted to any of
the transaction/mortgage(s) made in favour of the Appellants.”
11.2.The Appellate Tribunal further proceeded to hold that the provisions of
Section 45 of Code, for avoidance of undervalued transactions, were not
applicable in relation to the transactions in question while observing as under:-
“71. For holding a transaction undervalued, the ‘Resolution
Professional’/‘Liquidator’ is required to examine the transactions
which were made during ‘the relevant period’ as prescribed under
Section 46, if any of it is undervalued. As per sub-section (2) of
Section 45, the transaction shall be considered ‘undervalued’
‘where the ‘Corporate Debtor’ makes a gift to a person or enters
into a transaction with a person which involves the transfer of one
or more assets by the ‘Corporate Debtor’ for a consideration the
26
value of which is significantly less than the value of the
consideration provided by the ‘Corporate Debtor’ and such
transaction has not taken place in the ordinary course of business
of the ‘Corporate Debtor’.’
72. In these appeals, we find that the transactions as has been
made i.e. mortgage(s) in favour of the Appellants as and when
made against the amount payable by ‘Jaiprakash Associates
Limited’ (borrower), the amount is not payable by the ‘Corporate
Debtor’. Therefore, clause (a) of sub-section (2) of Section 45 is
not attracted. For the same very reason, clause (b) of sub-section
(2) of Section 43 or Section 45 cannot be made applicable with
regard to transaction in question which are not related to any
payment due from the ‘Corporate Debtor’.
73. As Section 44 is not attracted, it is not necessary to notice
Section 46 which is not attracted and, therefore, the Adjudicating
Authority has no power to pass any order under Section 48 of the
‘I&B Code’. ”
11.3.With respect to Section 66 of the Code dealing with fraudulent trading or
wrongful trading, the Appellate Tribunal observed that the corporate debtor,
being one of the group company, like a guarantor, had executed mortgage
deeds in favour of the lender banks and financial institutions; and the
transactions were in the ordinary course of business of the corporate debtor.
Thus, according to NCLAT, in the absence of any contrary evidence to show
that they were made to defraud the creditors of the corporate debtor or for any
fraudulent purpose, it was not open to the Adjudicating Authority to hold that
the mortgage deeds in question were made by way of transactions within the
meaning of ‘fraudulent trading’ or ‘wrongful trading’ under Section 66. The
Appellate Tribunal held,-
27
“76. In the present case, we have noticed that the transactions in
question i.e. mortgage(s) were made in favour of the ‘Banks and
Financial Institutions’ by the ‘Corporate Debtor’ (‘Jaypee Infratech
Limited’) in the ordinary course of business of the ‘Corporate
Debtor’. The Appellants-Banks and Financial Institutions have
given loans to the holding Company namely-‘Jaiprakash
Associates Limited’. The ‘Corporate Debtor’ being one of the
group company, like a guarantor, executed mortgage deed(s) in
favour of the Appellants-‘Banks and Financial Institutions’. We
have seen that none of the transactions were ‘preferential
transaction’ or ‘undervalued transaction’. It has not been alleged
that the transactions, in question, were made to defraud the
creditors in terms of Section 49 so allegation has been made that
such transactions amount to ‘extortionate credit’ as defined under
Section 50. Therefore, the Adjudicating Authority in absence of
any such finding is not empowered to pass order under Section
51. Further, as we have held that the transactions were made in
the ordinary course of business in absence of any contrary
evidence to show that they were made to defraud the creditors of
the ‘Corporate Debtor’ or for any fraudulent purpose, on mere
allegation made by the ‘Resolution Professional’, it was not open
to the Adjudicating Authority to hold that mortgage deeds, in
question, were made by way of transactions which come within
the meaning of ‘fraudulent trading’ or ‘wrongful trading’ under
Section 66.”
11.4.The Appellate Tribunal, therefore, allowed the appeals and set aside the
impugned order passed by NCLT on 16.05.2018 in so far relating to the
lenders in question in the following:-
“80. For the reasons aforesaid, we set aside the impugned order
dated 16
th
May, 2018 so far it relates to the Appellants. In view of
such findings, the Appellants-‘Axis Bank Ltd’, ‘Standard Chartered
Bank’, ‘ICICI Bank Ltd.’, ‘State Bank of India’, ‘Jai Prakash
Associates Ltd.’, ‘Bank of Maharashtra’, ‘United Bank of India’,
‘Central Bank of India’, ‘UCO Bank’, ‘Karur Vyasa Bank (P) Ltd.’,
‘L&T Infrastructure Finance Company Ltd.’, ‘Canara Bank’,
‘Karnataka Bank Ltd.’, ‘IFCI Ltd.’, ‘ Allahabad Bank’, ‘Jammu &
Kashmir Bank’, and ‘The South Indian Bank Ltd.’ are entitled to
exercise their rights under the ‘I&B Code’.
28
81. All the appeals are allowed. However, we make it clear that we
have not made any observations with regard to the Promoters or
Directors in absence of any appeal preferred on their behalf. No
costs.”
The relevant provisions
12.For comprehension of the subject-matter and appropriate dealing with
the issues involved, before proceeding further, suitable it would be to take note
of the relevant statutory provisions.
12.1.It may be observed that while generally, the expressions used in the
Code are defined in Section 3 thereof but then, the expressions employed for
the purpose of Part II of the Code, dealing with insolvency resolution and
liquidation of corporate persons, are defined in Section 5 thereof. The relevant
definitions as occurring in Sections 3 and 5 are as under:-
“Section 3(4): "charge" means an interest or lien created on the
property or assets of any person or any of its undertakings or
both, as the case may be, as security and includes a mortgage;
Section 3(6): "claim" means--
(a) a right to payment, whether or not such right is reduced to
judgment, fixed, disputed, undisputed, legal, equitable, secured or
unsecured;
(b) right to remedy for breach of contract under any law for the
time being in force, if such breach gives rise to a right to payment,
whether or not such right is reduced to judgment, fixed, matured,
unmatured, disputed, undisputed, secured or unsecured;
Section 3(8): "corporate debtor" means a corporate person who
owes a debt to any person;
Section 3(10): "creditor" means any person to whom a debt is
owed and includes a financial creditor, an operational creditor, a
secured creditor, an unsecured creditor and a decree-holder;
29
Section 3(11): "debt" means a liability or obligation in respect of a
claim which is due from any person and includes a financial debt
and operational debt;
Section 3(12): "default" means non-payment of debt when whole
or any part or instalment of the amount of debt has become due
and payable and is not paid by the debtor or the corporate debtor,
as the case may be;
Section 3(30): "secured creditor" means a creditor in favour of
whom security interest is created;
Section 3(31): "security interest" means right, title or interest or a
claim to property, created in favour of, or provided for a secured
creditor by a transaction which secures payment or performance
of an obligation and includes mortgage, charge, hypothecation,
assignment and encumbrance or any other agreement or
arrangement securing payment or performance of any obligation
of any person:
Provided that security interest shall not include a performance
guarantee;
Section 3(33): "transaction" includes a agreement or
arrangement in writing for the transfer of assets, or funds, goods
or services, from or to the corporate debtor;
Section 3(34): "transfer" includes sale, purchase, exchange,
mortgage, pledge, gift, loan or any other form of transfer of right,
title, possession or lien;
Section 3(35): "transfer of property" means transfer of any
property and includes a transfer of any interest in the property and
creation of any charge upon such property;
Section 5(5A): "corporate guarantor" means a corporate person
who is the surety in a contract of guarantee to a corporate debtor;
Section 5(7): "financial creditor" means any person to whom a
financial debt is owed and includes a person to whom such debt
has been legally assigned or transferred to;
Section 5(8): "financial debt" means a debt alongwith interest, if
any, which is disbursed against the consideration for the time
value of money and includes-
(a) money borrowed against the payment of interest;
(b) any amount raised by acceptance under any acceptance
credit facility or its de-materialised equivalent;
30
(c) any amount raised pursuant to any note purchase facility or
the issue of bonds, notes, debentures, loan stock or any similar
instrument;
(d) the amount of any liability in respect of any lease or hire
purchase contract which is deemed as a finance or capital lease
under the Indian Accounting Standards or such other accounting
standards as may be prescribed;
(e) receivables sold or discounted other than any receivables
sold on non-recourse basis;
(f) any amount raised under any other transaction, including any
forward sale or purchase agreement, having the commercial effect
of a borrowing;
Explanation.-- For the purposes of this sub-clause,--
(i) any amount raised from an allottee under a real estate project
shall be deemed to be an amount having the commercial effect of
a borrowing; and
(ii) the expressions, "allottee" and "real estate project" shall have
the meanings respectively assigned to them in clauses (d) and
(zn) of section 2 of the Real Estate (Regulation and Development)
Act, 2016 (16 of 2016);
22
(g) any derivative transaction entered into in connection with
protection against or benefit from fluctuation in any rate or price
and for calculating the value of any derivative transaction, only the
market value of such transaction shall be taken into account;
(h) any counter-indemnity obligation in respect of a guarantee,
indemnity, bond, documentary letter of credit or any other
instrument issued by a bank or financial institution;
(i) the amount of any liability in respect of any of the guarantee
or indemnity for any of the items referred to in sub-clauses (a) to
(h) of this clause;
Section 5(20): “operational creditor” means a person to whom
an operational debt is owed and includes any person to whom
such debt has been legally assigned or transferred;
Section 5(21): “operational debt” means a claim in respect of the
provision of goods or services including employment or a debt in
respect of the payment of dues arising under any law for the time
being in force and payable to the Central Government, any State
Government or any local authority;
Section 5(24): “related party”, in relation to a corporate debtor,
means –
22 This explanation was inserted w.e.f. 06.06.2018.
31
(a) a director or partner of the corporate debtor or a relative of
a director or partner of the corporate debtor;
(b)a key managerial personnel of the corporate debtor or a
relative of a key managerial personnel of the corporate debtor;
(c)a limited liability partnership or a partnership firm in which a
director, partner, or manager of the corporate debtor or his relative
is a partner;
(d)a private company in which a director, partner or manager of
the corporate debtor is a director and holds along with his
relatives, more than two per cent of its share capital;
(e)a public company in which a director, partner or manager of
the corporate debtor is a director and holds along with relatives,
more than two per cent of its paid-up share capital;
(f)anybody corporate whose board of directors, managing
director or manager, in the ordinary course of business, acts on
the advice, directions or instructions of a director, partner or
manager of the corporate debtor;
(g)any limited liability partnership or a partnership firm whose
partners or employees in the ordinary course of business, acts on
the advice, directions or instructions of a director, partner or
manager of the corporate debtor;
(h)any person on whose advice, directions or instructions, a
director, partner or manager of the corporate debtor is
accustomed to act;
(i)a body corporate which is a holding, subsidiary or an
associate company of the corporate debtor, or a subsidiary of a
holding company to which the corporate debtor is a subsidiary;
(j)any person who controls more than twenty per cent of voting
rights in the corporate debtor on account of ownership or a voting
agreement;
(k)any person in whom the corporate debtor controls more than
twenty per cent of voting rights on account of ownership or a
voting agreement;
(l)any person who can control the composition of the board of
directors or corresponding governing body of the corporate debtor;
(m)any person who is associated with the corporate debtor on
account of ---
(i)participation in policy making process of the corporate
debtor; or
(ii)having more than two directors in common between the
corporate debtor and such person; or
(iii)interchange of managerial personnel between the
corporate debtor and such person; or
32
(iv)provision of essential technical information to, or from, the
corporate debtor;”
12.2.The concept and consequences of preferential transactions at a relevant
time are provided in Sections 43 and 44 of the Code, which may also be
usefully extracted as follows:-
“Section 43. Preferential transactions and relevant time.-
(1) Where the liquidator or the resolution professional, as the case
may be, is of the opinion that the corporate debtor has at a
relevant time given a preference in such transactions and in such
manner as laid down in sub-section (2) to any persons as referred
to in sub-section (4), he shall apply to the Adjudicating Authority
for avoidance of preferential transactions and for, one or more of
the orders referred to in section 44.
(2) A corporate debtor shall be deemed to have given a
preference, if—
(a) there is a transfer of property or an interest thereof of the
corporate debtor for the benefit of a creditor or a surety or a
guarantor for or on account of an antecedent financial debt or
operational debt or other liabilities owed by the corporate debtor;
and
(b) the transfer under clause (a) has the effect of putting such
creditor or a surety or a guarantor in a beneficial position than it
would have been in the event of a distribution of assets being
made in accordance with section 53.
(3) For the purposes of sub-section (2), a preference shall not
include the following transfers—
(a) transfer made in the ordinary course of the business or
financial affairs of the corporate debtor or the transferee;
(b) any transfer creating a security interest in property acquired by
the corporate debtor to the extent that—
(i) such security interest secures new value and was given at
the time of or after the signing of a security agreement that
contains a description of such property as security interest, and
was used by corporate debtor to acquire such property; and
(ii) such transfer was registered with an information utility on or
before thirty days after the corporate debtor receives
possession of such property:
33
Provided that any transfer made in pursuance of the order of a
court shall not, preclude such transfer to be deemed as giving of
preference by the corporate debtor.
Explanation.—For the purpose of sub-section (3) of this section,
"new value" means money or its worth in goods, services, or new
credit, or release by the transferee of property previously
transferred to such transferee in a transaction that is neither void
nor voidable by the liquidator or the resolution professional under
this Code, including proceeds of such property, but does not
include a financial debt or operational debt substituted for existing
financial debt or operational debt.
(4) A preference shall be deemed to be given at a relevant time, if
—
(a) It is given to a related party (other than by reason only of being
an employee), during the period of two years preceding the
insolvency commencement date; or
(b) a preference is given to a person other than a related party
during the period of one year preceding the insolvency
commencement date.
Section 44. Orders in case of preferential transactions.-
(1) The Adjudicating Authority, may, on an application made by the
resolution professional or liquidator under sub-section (1) of
section 43, by an order:
(a) require any property transferred in connection with the giving
of the preference to be vested in the corporate debtor;
(b) require any property to be so vested if it represents the
application either of the proceeds of sale of property so
transferred or of money so transferred;
(c) release or discharge (in whole or in part) of any security
interest created by the corporate debtor;
(d) require any person to pay such sums in respect of benefits
received by him from the corporate debtor, such sums to the
liquidator or the resolution professional, as the Adjudicating
Authority may direct;
(e) direct any guarantor, whose financial debts or operational
debts owed to any person were released or discharged (in whole
or in part) by the giving of the preference, to be under such new or
revived financial debts or operational debts to that person as the
Adjudicating Authority deems appropriate;
(f) direct for providing security or charge on any property for the
discharge of any financial debt or operational debt under the
order, and such security or charge to have the same priority as a
34
security or charge released or discharged wholly or in part by the
giving of the preference; and
(g) direct for providing the extent to which any person whose
property is so vested in the corporate debtor, or on whom financial
debts or operational debts are imposed by the order, are to be
proved in the liquidation or the corporate insolvency resolution
process for financial debts or operational debts which arose from,
or were released or discharged wholly or in part by the giving of
the preference:
Provided that an order under this section shall not—
(a) affect any interest in property which was acquired from a
person other than the corporate debtor or any interest derived
from such interest and was acquired in good faith and for value;
(b) require a person, who received a benefit from the preferential
transaction in good faith and for value to pay a sum to the
liquidator or the resolution professional.
Explanation I.-For the purpose of this section, it is clarified that
where a person, who has acquired an interest in property from
another person other than the corporate debtor, or who has
received a benefit from the preference or such another person to
whom the corporate debtor gave the preference, —
(i) had sufficient information of the initiation or commencement of
insolvency resolution process of the corporate debtor;
(ii) is a related party,
it shall be presumed that the interest was acquired or the benefit
was received otherwise than in good faith unless the contrary is
shown.
Explanation II.-A person shall be deemed to have sufficient
information or opportunity to avail such information if a public
announcement regarding the corporate insolvency resolution
process has been made under section 13.”
12.3.As the transactions in question are the mortgage(s) of the assets of
corporate debtor JIL, the concept and connotations of mortgage, as occurring
in Section 58 of the Transfer of Property Act, 1882
23
, could also be usefully
noticed as under:-
23 Hereinafter also referred to as ’the Transfer of Property Act’.
35
“58. “Mortgage”, “mortgagor”, “mortgagee”, “mortgage-
money” and “mortgage-deed” defined.-
(a) A mortgage is the transfer of an interest in specific immoveable
property for the purpose of securing the payment of money
advanced or to be advanced by way of loan, an existing or future
debt, or the performance of an engagement which may give rise to
a pecuniary liability.
The transferor is called a mortgagor, the transferee a mortgagee;
the principal money and interest of which payment is secured for
the time being are called the mortgage-money, and the instrument
(if any) by which the transfer is effected is called a mortgage-
deed.
(b) Simple mortgage.-Where, without delivering possession of
the mortgaged property, the mortgagor binds himself personally to
pay the mortgage-money, and agrees, expressly or impliedly, that,
in the event of his failing to pay according to his contract, the
mortgagee shall have a right to cause the mortgaged property to
be sold and the proceeds of sale to be applied, so far as may be
necessary, in payment of the mortgage-money, the transaction is
called a simple mortgage and the mortgagee a simple mortgagee.
(c) Mortgage by conditional sale.-Where, the mortgagor
ostensibly sells the mortgaged property-
on condition that on default of payment of the mortgage-
money on a certain date the sale shall become absolute, or
on condition that on such payment being made the sale shall
become void, or
on condition that on such payment being made the buyer
shall transfer the property to the seller,
the transaction is called a mortgage by conditional sale and
the mortgagee a mortgagee by conditional sale:
Provided that no such transaction shall be deemed to be a
mortgage, unless the condition is embodied in the document
which effects or purports to effect the sale.
(d) Usufructuary mortgage.-Where the mortgagor delivers
possession or expressly or by implication binds himself to deliver
possession of the mortgaged property to the mortgagee, and
authorises him to retain such possession until payment of the
mortgage-money, and to receive the rents and profits accruing
from the property or any part of such rents and profits and to
appropriate the same in lieu of interest, or in payment of the
mortgage-money, or partly in lieu of interest or partly in payment of
the mortgage-money, the transaction is called an usufructuary
mortgage and the mortgagee an usufructuary mortgagee.
36
(e) English mortgage.-Where the mortgagor binds himself to
repay the mortgage-money on a certain date, and transfers the
mortgaged property absolutely to the mortgagee, but subject to a
proviso that he will re-transfer it to the mortgagor upon payment of
the mortgage-money as agreed, the transaction is called an
English mortgage.
(f) Mortgage by deposit of title-deeds.-Where a person in any of
the following towns, namely, the towns of Calcutta, Madras, and
Bombay, and in any other town which the State Government
concerned may, by notification in the Official Gazette, specify in
this behalf, delivers to a creditor or his agent documents of title to
immoveable property, with intent to create a security thereon, the
transaction is called a mortgage by deposit of title-deeds.
(g) Anomalous mortgage.- A mortgage which is not a simple
mortgage, a mortgage by conditional sale, an usufructuary
mortgage, an English mortgage or a mortgage by deposit of title-
deeds within the meaning of this section is called an anomalous
mortgage.”
12.4.The provisions contained in Sections 124, 126 and 127 of the Indian
Contract Act, 1872
24
shall also have bearing on the issues at hand and
hence, the same may also be noted as follows:-
“124. “Contract of indemnity” defined.- A contract by which one
party promises to save the other from loss caused to him by the
conduct of the promisor himself, or by the conduct of any other
person, is called a “contract of indemnity.”
126. ‘Contract of guarantee’, ‘surety’, ‘principal debtor’ and
‘creditor’ – A ‘contract of guarantee’ is a contract to perform the
promise, or discharge the liability, of a third person in case of his
default. The person who gives the guarantee is called the ‘surety’;
the person in respect of whose default the guarantee is given is
called the ‘principal debtor’, and the person to whom the
guarantee is given is called the ‘creditor’. A guarantee may be
either oral or written.
127. Consideration for guarantee.- Anything done, or any
promise made, for the benefit of the principal debtor, may be a
sufficient consideration to the surety for giving the guarantee.”
24 Hereinafter also referred to as ‘the Contract Act’.
37
WHETHER THE TRANSACTIONS IN QUESTION ARE PREFERENTIAL
Broad features of rival contentions and submissions
13.As noticed, being aggrieved by the order so passed by NCLAT, three
sets of parties have preferred these appeals. Multidimensional and wide-
ranging submissions have been made by learned counsel for the respective
parties, raising the issues as to whether the transactions in question could be
said to be preferential and/or undervalued and/or fraudulent, essentially within
the meaning of Sections 43, 45, 49 and 66 of the Code. Elaborate submissions
have also been made raising the issue as to whether the lenders of JAL, in
whose favour the security interest by way of impugned transactions were
created, would fall in the category of ‘financial creditors’ of the corporate debtor
JIL.
14.Having regard to the overall circumstances, appropriate it would be to
deal, at the first, with the contentions related with the issue as to whether the
transactions in question are preferential transactions within the meaning of
Section 43 of the Code. We may briefly summarize the contentions of the
appellants, with particular focus on this issue as infra:
Interim Resolution Professional for Jaypee Infratech Limited – the
appellant In C.A. No. 8512-8527 of 2019
14.1.It has been contended on behalf of the appellant Interim Resolution
Professional, who moved the application for avoidance of the transactions in
question, that the impugned transactions have the effect of putting JAL, which
38
is an equity shareholder and an operational creditor (for an amount of Rs.
261.77 crores) of the corporate debtor JIL, in a beneficial position than it would
have been in the event of distribution of assets under Section 53 of the Code
vis-à-vis other creditors; and that if the transactions are held to be valid, the
liability of JAL towards its own creditors gets secured and becomes realisable
from the value of the mortgaged properties whereby, JAL’s liabilities are
reduced and JAL gets benefitted in exclusion of creditors of the corporate
debtor JIL. It is submitted that, in the event of distribution of assets in terms of
Section 53 of IBC, for the sake of argument, even if JAL is to get full value of
its shares (Rs. 995 crores), such amount is significantly less than the value of
assets which have been mortgaged by way of impugned transactions for
satisfaction of debts owed by JAL to its lenders.
14.1.1.It is submitted on behalf of the appellant Interim Resolution Profession
that the assets in question were released from the earlier mortgages and fresh
mortgages were created during the look-back period with increased/enhanced
amount of facilities as provided under each individual transaction. The said so-
called re-mortgage essentially amounts to a fresh mortgage within the relevant
time of two years before the date of commencement of CIRP and was not
done in the ordinary course of business of JIL and hence, is hit by Section 43
of the Code.
14.1.2.It is further urged that in the exclusionary clause under Section 43(3)
(a), which pertains to the transfer being made in the ordinary course of
39
the business or financial affairs of the corporate debtor or the transferee, the
expression “or” will have to be read conjunctively and not in the alternative.
That is to say, the word “or” will have to be read as “and”. This is because if
“or” is read textually, it would mean that an overwhelming majority of
transactions like the present one, whereby banks who would accept the
security interest over properties belonging to a third party, after disbursing
financial facilities to its loan, would get out of the net of “preferential
transactions”, even if the transfer in question is not made in the ordinary
course of business of the corporate debtor. It is submitted that the intention of
legislature behind enacting a provision like Section 43 is that preferential
transactions are avoided so that such assets would be available either with the
resolution professional or with the liquidator, as the case may be, to put the
corporate debtor back on its wheels or if that is not possible, to ensure that the
creditors of the corporate debtor get a fair deal. With reference to the decisions
of this Court in State of Bombay v. R.M.D. Chamarbaugwala and Anr.: 1957
SCR 874 and Mazagaon Dock Ltd v. Commissioner of Income-Tax and
Excess Profits Tax: 1959 SCR 848, it is submitted that on the well-known
cannons of interpretation, “or” could be read as “and” if it is warranted to bring
the provision in question in sync with the intention of the legislature which is to
be discerned.
14.1.3.It is contended that Section 43 ought to be read keeping in mind the
intention of the legislature in introducing such provision, which had been to
40
protect the creditors against siphoning away of corporate assets by the
management of the company, who have special knowledge of the company’s
financial troubles by virtue of its position.
India Infrastructure Finance Company Limited – the appellant in C.A.@
D No. 32881 of 2019.
14.2.This appellant is one of the entities who has advanced loan to JIL and
has preferred appeal with permission, assailing the order passed by NCLAT
and maintaining, inter alia, that in any case, the lenders of JAL cannot be
taken as ‘financial creditors’ of JIL. While referring to the theory behind the
provisions for avoidance of certain transactions, it is submitted on behalf of this
appellant that the Court should consider substance rather than legal form in
evaluating the true economic effect of a transaction or a set of transactions in
applying the relevant provisions. On behalf of this appellant, the following
submissions have been made in regard to the relevant expressions and
phrases occurring in the provisions under consideration:
Ordinary Course of Business
14.2.1.It is submitted that mortgages could not have been made in the
ordinary course of business of the corporate debtor JIL, as it is difficult to
fathom why a subsidiary would furnish security to its parent company in the
ordinary course and, on the contrary, it is the parent company which at times
furnishes security on behalf of its subsidiary since it derives economic value
from the subsidiary. According to the appellant, it is difficult to appreciate that
when the corporate debtor JIL was itself reeling under financial stress, why it
41
would routinely undertake to secure the indebtedness of JAL by furnishing
such high valued securities and that too when the amount of debt secured by
way of mortgaging the assets of the corporate debtor increased from Rs. 3,000
crores to approximately Rs. 24,000 crores and the number of creditors also
went up from 2 to 24 with respect to the consortium mortgage. It is submitted
that even though creation of third party security is a normal practice, the
creation of every third party security cannot be always deemed to have been
done in the ordinary course of business; that such ‘ordinary course’ has to be
determined under the circumstances when such transactions were entered
into; and, considering that JIL was declared NPA and had defaulted on its
indebtedness to some of its lenders, securing of JAL’s indebtedness under
such circumstances cannot be construed to have been done in the ordinary
course of business of the corporate debtor JIL. The learned counsel for the
appellant has referred, inter alia, to the decision in Downs Distributing Co
Pty Ltd v. Associated Blue Star Stores Pty Ltd (in liq): (1948) 76 CLR 463.
Relevant Period and Related Party
14.2.2.It is further submitted that the term ‘transaction’ under the Code
includes an agreement or arrangement in writing for the transfer of assets, or
funds, goods or services from or to the corporate debtor. The use of the word
‘include’ would signify its natural import and is to be given a wide
interpretation. It is submitted that as JAL was not only ad idem to the terms of
the transaction but was also the beneficiary thereof, it cannot be said that the
42
transaction was only between the corporate debtor and the lenders of JAL;
rather, the transaction was with a ‘related party’ and the look-back period
would be two years.
Home buyers – the appellants in C.A. No. 6777-97/2019
14.3.On behalf of the home buyers, who have invested in the projects of the
corporate debtor and whose interests would be diluted if the impugned
transactions are upheld, the flow of transactions in question has been referred
and essentially, the same contentions have been urged with respect to Section
43 of the Code, with reliance on the decision in Downs Distributing Co (supra),
that the impugned transactions were not made in the ordinary course of
business of the corporate debtor JIL; and had been preferential transactions,
putting JAL in a beneficial position at the cost of bona fide creditors of JIL,
including the home buyers. We are not re-narrating all their contentions to
avoid repetition. However, we may observe that to substantiate their
arguments with respect to Section 43 of the Code, on behalf of these
appellants, reliance is also placed on the interim report of the Bankruptcy
Law Reforms Committee (February 2015) and the decision of this Court
in Macquarie Bank Ltd. v. Shilpi Cable Technologies Ltd.: (2018) 2 SCC
674.
The respondents
15.The contesting respondents have refuted the contentions of the
appellants with essentially similar submissions that the transactions in
43
question cannot be termed as preferential transactions within the meaning of
Section 43 of the Code.
15.1.The respondents, particularly the lenders of JAL, while maintaining a
consistent stand that the transactions in question are not preferential and do
not fall under Section 43 of the Code, have submitted that they being the
bankers and financial institutions, are regularly engaged in the business of
extending loans and other facilities which form the backbone of economic
growth; and taking of such securities, including third party security, is one of
the normal and ordinary feature of their business and dealings, particularly that
of corporate money lending. According to these respondents, if at all such third
party securities are avoided on the allegation of being preferential, it is likely to
have a devastating effect on the entire economy because the bankers and
financial institutions would then be left high and dry; and for future dealings,
they shall have no alternative but to restrict their activities only to the direct
party securities which would, in turn, result in retardation and regression. It is
submitted that in a given case, the borrower may not be able to offer matching
security to secure the entire advance requisite for its business and growth; and
legally it is not impermissible between the related companies that one may
provide security towards the loan/advance/facility obtained by the other.
According to the respondents, the scheme of the Code, and particularly its
Part II, has never been to allow the processes of insolvency resolution or
liquidation to operate detrimental to the interests of the financers like
44
themselves (lenders of JAL). It is contended that on the true scope of the
provisions contained under Section 43 of the Code, with reference to the intent
and object, the transactions in question, representing the security and
guarantee extended by the corporate debtor JIL, cannot be construed as
preferential, particularly when they were entered into in the ordinary course of
business and financial affairs of the corporate debtor as also the transferees.
15.2. Apart from expressing such concerns about likely prejudice to
themselves and to the economy if the transactions in question are held
preferential, a variety of contentions have been advanced on behalf of the
respondents, while refuting those of the appellants. We may briefly summarize
the leading contentions on behalf of the contesting respondents while omitting
repetitions.
Axis Bank
15.3.While maintaining that the impugned transactions cannot be considered
as preferential within the meaning of Section 43 of the Code, the principal
contentions on behalf of this respondent are as under: -
a.The transactions did not occur within the ‘relevant time’.
15.3.1. It is contended that the ‘relevant time’ in the present circumstances
could be only one year as the transfer of property interest was to this
respondent, which is a Bank and an unrelated party. It is further contended
that, in any event, the land parcels were mortgaged on 24.02.2015, which is
beyond even the two years formulation, the relevant time being from
45
10.08.2015 to 09.08.2017. The subsequent re-execution of the mortgage
deeds on 15.09.2015 and then again on 29.12.2016 cannot be considered to
be a substantive event since the nature and identity of the security remained
the same and no fresh encumbrances were created. The re-mortgage was
done to reflect the increase in the amount of facilities and number of members
in the consortium. It is not the case that the existing facilities were paid, the
mortgage satisfied, and fresh facilities were created for which a fresh
mortgage was required.
b.Without prejudice to the above, the ingredients of Section 43(2) are not met.
15.3.2. It is further submitted that Sections 43/44 of the Code are expropriating
provisions as they affect concluded transactions and have the potential to
render void the transfers of property done through the transactions which are
otherwise legitimate and hence, such provisions must be strictly construed.
The decisions of this Court in Devinder Singh & Ors v. State of Punjab &
Ors: (2008) 1 SCC 728 and Nareshbhai v. Union of India : (2019) SCC
Online SC 1027 have been relied upon.
15.3.3. It is submitted that the requirements set out under Section 43(2) must
be strictly construed and in the instant case, the two prongs under Section
43(2) have not been satisfied. With reference to UNCITRAL Legislative
Guide on Insolvency Law at para 177, it is submitted that as per Section
43(2)(a), a preference could only be given to an existing creditor such that he
is preferred over other creditors but in this matter, the security was provided
46
for the benefit of the respondent bank, which did not have a pre-existing
creditor-debtor relationship with the corporate debtor. Further, the security was
provided on account of the debt obligations of JAL, and not any antecedent
debt obligations of the corporate debtor.
15.3.4. It is further submitted, without prejudice to the above, that even if JAL
is taken to be a creditor within the meaning of Section 43(2)(a), then the
requirements of Section 43(2)(b), the second prong of the two-fold requirement
for a transaction to be a preference, are not met. It is submitted that the
transfer in the instant case has no effect whatsoever on the relative position of
JAL in the distribution waterfall – it remains an operational creditor without any
security interest.
c.Without prejudice to the above, security was provided in the ordinary
course of business.
15.3.5. While pointing out that Section 43(3)(a) carves out exception for the
transactions made in the ordinary course of business or financial affairs of
either the corporate debtor or the transferee, it is contended that no material
particulars/evidence have been produced to show that the provision of the
security was not in the ordinary course of business of the corporate debtor. On
the contrary, according to the respondent, (i) creation of third party security is
an established commercial business practice; (ii) the corporate debtor has
continuously disclosed details of the security in its annual reports beginning
from the financial year ending 31.03.2015 and thus, creation of security was
known to all and disclosed in public documents; and (iii) no evidence of dissent
47
from any existing creditor of the corporate debtor has been shown at the time
of creation of the security. The transaction in question, according to the
respondent, had been in the ordinary course of business of the corporate
debtor and remains unexceptionable.
15.3.6. It is further contended that the provision of security was also in the
ordinary course of business of the respondent who is a scheduled commercial
bank and is duly authorized by statute to carry out the business of commercial
lending on a secured basis [per Section 6(1)(a) of the Banking Regulation Act,
1949]; and is statutorily entitled to seek credit enhancement on account of
outstanding debts by way of creation of security interests by borrowers or their
related entities. For this reason too, with the transaction being in the ordinary
course of business of the transferee i.e., the respondent, it cannot be termed
as a preferential transaction.
15.3.7. It is yet further submitted that the contention of IRP that the corporate
debtor ought not to have given the security as its accounts had turned NPA
with certain banks is fallacious as it conflates the concepts of ‘NPA’ and ‘willful
defaulter’ and ignores that the security was given to the respondent even
before the account turned NPA qua certain banks. With reference to the
interim report of the Bankruptcy Law Reforms Committee issued in February
2015, it is submitted that as per the said report, avoidance transactions relate
to ‘willful defaulters’ and not ‘NPAs’. It is further argued that the distinctive
position of a willful defaulter and an NPA is also indicated in Section 29A of
48
Code, where Section 29A(b) provides that a willful defaulter can never be a
resolution applicant whereas, Section 29A(c) provides that a company whose
account has become non-performing may only be disqualified if the account
has remained non-performing for a period of one year. It is submitted that RBI
Master Circular on asset classification issued in July 2015 and June 2019 set
out that an account may turn NPA qua a particular bank if the debts are not
being serviced regularly but this does not mean that a particular company’s
accounts would have turned non-performing qua all its lenders. It is also
submitted that the other account of corporate debtor with this respondent
turned NPA only in 2017, i.e., much after the creation of security in question. It
is further contended that a company’s account may easily become standard if,
inter alia, the company regularizes its payment timelines or if lenders decide to
revise the company’s repayment obligations. Reliance is placed on the
decisions of this Court in Keshavlal Khemchand & Sons Pvt. Ltd. & Ors v.
Union of India & Ors: (2015) 4 SCC 770 and State Bank of India v. Jah
Developers Pvt. Ltd. & Ors.: (2019) 6 SCC 787.
d.Section 44 does not come into operation unless a transaction is made out
to be preferential under Section 43.
15.3.8. It is further submitted that the jurisdictional condition of exercising
power under Section 44 is the finding that a transaction is preferential under
Section 43, as is evident from the heading of Section 44 i.e., ‘Orders in cases
49
of preferential transactions’; and, for the transaction in question being not
preferential under Section 43, no orders could be made under Section 44.
Standard Chartered Bank
15.4.Most of the contentions urged on behalf of this respondent are
analogous to the contentions noticed in the preceding paragraphs and,
therefore, we are not repeating the same. It is maintained on behalf of this
respondent that in whatever way the relevant time is reckoned for the purpose
of Section 43 of the Code, its transactions would not fall therein because the
initial mortgage in favour of this respondent was made in the year 2012, which
is beyond the two years formulation. The further submission is that the
subsequent conversion of registered mortgage into an equitable mortgage on
04.11.2015 and thereafter, re-conversion from equitable mortgage to
registered mortgage on 24.05.2016, in relation to the same subject property as
a security, cannot be considered as a fresh creation of mortgage and hence,
the transaction in question does not fall within relevant time.
ICICI Bank
15.5.Again, for most of the contentions on behalf of this respondent being
similar in nature, we are not repeating the same. However, we may notice that
with reference to Section 43(4) of the Code, it has been contended that since
this respondent bank is an unrelated party to both the corporate debtor and
JAL, the relevant look-back period would be one year and not two years. It is
submitted that the mortgages were created on 15.09.2015 and the same
50
property was re-mortgaged on 29.12.2016, which is much before the look-back
period of one year and thereby, this transaction could not be challenged as
being preferential. The decisions of the Bombay High Court in Monarch
Enterprises v. Kishan Tulpule & Ors : (1992) 74 Comp Case 89 (Bom) and
that of Madras High Court in IDBI Bank Ltd. v. The Administrator, Kothari
Orient Finance Ltd., the Official Liquidator & S. Ramaiah : (2009) 152
Comp Case 282 (Mad) have been referred while submitting that a mere
transfer of the assets within the look-back period would not make the
transaction preferential except when it is coupled with the intent to prefer one
creditor over the other. Further, for contending that the impugned transactions
were made in the ordinary course of business of both the respondent Bank
and the corporate debtor, the Annual Reports of corporate debtor JIL have
been referred with the submissions that the mortgaged properties were
disclosed as ‘inventories’ for the corporate debtor being a real estate company;
and hence, dealing with the ‘inventories’/‘stock-in-trade’ is in the ordinary
course of business.
15.5.1.It is further submitted that there is no relation between the financial
position of the corporate debtor and the impugned transaction for another
reason that as on the date of commencement of insolvency proceedings, the
corporate debtor had 740 acres of unencumbered land, which could have
been used to create security for the creditors of corporate debtor. While
pointing out that 11 out of 13 lenders of the corporate debtor JIL are also a
51
part of the consortium of JAL lenders whose loans were secured by mortgages
made by the corporate debtor, it is submitted that prior to 15.09.2015, when
the questioned Consortium of Mortgages was created, only Jammu and
Kashmir Bank had declared the corporate debtor as NPA, which was followed
by the other lenders declaring the corporate debtor as NPA. It is contended
that prior to the said declaration, the transactions with this respondent had
been made as also the mortgages created on 15.09.2015, which had also
secured the interests of Jammu and Kashmir Bank and, therefore, the
impugned transactions could not be said to be preferential.
Other respondent-lenders
15.6.Broadly speaking, similar submissions as noted above have been made
on behalf of other respondent-lenders while maintaining that the impugned
transactions are covered by the exclusion clause under Section 43 inasmuch
as the transfers had been made in the ordinary course of business of the
corporate debtor as also the transferees; and that for the purpose of Section
43 of the Code, the relationship between the respondent-lenders and JIL ought
to be looked into rather than assuming JAL to be the primary transferee. It has
also been argued, while relying on the decision of this Court in Purbanchal
Cables & Conductors Pvt. Ltd. & Ors v. Assam State Electricity Board &
Ors : (2012) 7 SCC 462, that the provisions of Section 43 of the Code, by their
very nature, would come into operation at least one year after the
enactment of the Code i.e., it would have only the prospective effect and
52
cannot be given retrospective effect so as to operate over any period
prior to the enactment.
Jaiprakash Associates Ltd. (JAL)
15.7.As noticed, this respondent JAL is the holding company of corporate
debtor JIL; and the transactions in question had been for securing the
loans/facilities obtained by this respondent. Even while broadly adopting the
contentions advanced by other respondents, further submissions have been
made on behalf of this respondent to assert on the credence of the
transactions in question. With reference to its relationship with JIL, it is
contended on behalf of this respondent that being the holding company, JAL
had been providing financial, technical and strategic support to JIL in various
ways being: (i) Investment made in 99,50,00,000 shares of JIL (paid up value
Rs. 995 crores) at its very nascent stage, which means contribution of
substantial funds for the business of JIL without interest; (ii) Pledge of its
70,83,56,087 equity shares held in JIL in favour of the lender of JIL; (iii)
Promoter Support Agreement to meet the Debt Service Reserve Account
(DSRA) obligation of JIL towards its lenders; and (iv) Bank Guarantees of Rs.
212 crores in aggregate to meet the DSRA obligation of JIL for the financial
assistance obtained by JIL. It is submitted that such dealings/transactions by
JAL in favour of JIL depict the nature of business relationship between JAL
and JIL and makes it amply clear that the impugned transactions were done in
53
the ordinary course of business and financial affairs of JIL. It is further
submitted that the mortgage of 858 acres of land made in favour of lenders of
JAL fall within the ambit of Section 186 of Companies Act, 2013
25
and is not
unauthorized.
15.7.1.It is contended that avoidance of preferential transactions applies to a
case where the company’s accounts has become stressed and there is a
strong likelihood of it going into liquidation but in the present case, it is a
matter of record that the accounts of JIL had been categorised as NPA only to
an extent of 29.04% whereas the remaining accounts were still ‘standard’.
According to the respondent JAL, this fact was specifically pleaded at the
stage of opposing the application filed before the NCLT for initiating CIRP
against JIL but JIL gave its consent for CIRP on the bona fide belief that it
would be able to restructure its loans and get back the management of JIL.
The submission is that, in the given economic scenario, JIL was not in any
such stress or problem that it could not have continued with the existing
mortgages for securing the facilities advanced to JAL by the lender banks and
financial institutions.
Insolvency and Bankruptcy Code, 2016: historical background, objects,
scheme and structure of the relevant parts
16.The basic issue raised in the matter being related with the effect and
operation of Section 43 of the Code, concerning ‘Preferential transactions
25 Hereinafter also referred to as ‘the Act of 2013’.
54
and relevant time’, appropriate it shall be to comprehend the principles
underlying the concept of ‘preferential transactions’. A little insight into the
objects sought to be achieved by the Insolvency and Bankruptcy Code, 2016
and its historical background shall be apposite.
16.1.As noticed from Preamble, the Code came to be enacted to consolidate
and amend the laws relating to reorganisation and insolvency resolution of
corporate persons and even of partnership firms and individuals in a time
bound manner; the objectives, inter alia, being for maximisation of value of
assets of such persons and balance of interest of all the stakeholders.
16.1.1.In the case of Swiss Ribbons Private Limited and Anr. v. Union of
India and Ors.: (2019) 4 SCC 17
26
, this Court had the occasion to traverse
through the historical background and scheme of the Code in the wake of
challenge to the constitutional validity of various provisions therein. One part of
such challenge had also been founded on the ground that classification
between ‘financial creditor’ and ‘operational creditor’ was discriminatory and
violative of Article 14 of the Constitution of India.
27
This ground as also several
other grounds pertaining to various provisions of the Code were rejected by
this Court after elaborate dilation on the vast variety of rival contentions and
the provisions so contained in the Code were upheld as valid. In the course of
26 Hereinafter also referred to as the case of ‘Swiss Ribbons’.
27 The law declared by this Court in this case of Swiss Ribbons, while rejecting the contentions that
the classification between ‘financial creditor’ and ‘operational creditor’ was discriminatory and violative
of Article 14, shall have some bearing on the issues at hand, particularly in relation to the second issue
on the claim of the respondent-lenders for being treated a financial creditors of JIL, as shall be noticed
hereafter later.
55
such distillation, this Court took note, inter alia, of the pre-existing state of law
as also the objects and reasons for enactment of the Code. While observing
that the focus of the Code was to ensure revival and continuation of the
corporate debtor, where liquidation is to be availed of only as a last resort, this
Court pointed out that on its scheme and frame work, the Code was a
beneficial legislation to put the corporate debtor on its feet, and not a mere
recovery legislation for the creditors. This Court said,-
“27. As is discernible, the Preamble gives an insight into what is
sought to be achieved by the Code. The Code is first and
foremost, a Code for reorganisation and insolvency resolution of
corporate debtors. Unless such reorganisation is effected in a
time-bound manner, the value of the assets of such persons will
deplete. Therefore, maximisation of value of the assets of such
persons so that they are efficiently run as going concerns is
another very important objective of the Code. This, in turn, will
promote entrepreneurship as the persons in management of the
corporate debtor are removed and replaced by entrepreneurs.
When, therefore, a resolution plan takes off and the corporate
debtor is brought back into the economic mainstream, it is able to
repay its debts, which, in turn, enhances the viability of credit in
the hands of banks and financial institutions. Above all, ultimately,
the interests of all stakeholders are looked after as the corporate
debtor itself becomes a beneficiary of the resolution scheme—
workers are paid, the creditors in the long run will be repaid in full,
and shareholders/investors are able to maximise their investment.
Timely resolution of a corporate debtor who is in the red, by an
effective legal framework, would go a long way to support the
development of credit markets. Since more investment can be
made with funds that have come back into the economy, business
then eases up, which leads, overall, to higher economic growth
and development of the Indian economy. What is interesting to
note is that the Preamble does not, in any manner, refer to
liquidation, which is only availed of as a last resort if there is either
no resolution plan or the resolution plans submitted are not up to
the mark. Even in liquidation, the liquidator can sell the business
56
of the corporate debtor as a going concern. (See ArcelorMittal
28
at
para 83, fn 3)
28. It can thus be seen that the primary focus of the legislation is
to ensure revival and continuation of the corporate debtor by
protecting the corporate debtor from its own management and
from a corporate death by liquidation. The Code is thus a
beneficial legislation which puts the corporate debtor back on its
feet, not being a mere recovery legislation for creditors. The
interests of the corporate debtor have, therefore, been bifurcated
and separated from that of its promoters/those who are in
management. Thus, the resolution process is not adversarial to
the corporate debtor but, in fact, protective of its interests. The
moratorium imposed by Section 14 is in the interest of the
corporate debtor itself, thereby preserving the assets of the
corporate debtor during the resolution process. The timelines
within which the resolution process is to take place again protects
the corporate debtor’s assets from further dilution, and also
protects all its creditors and workers by seeing that the resolution
process goes through as fast as possible so that another
management can, through its entrepreneurial skills, resuscitate
the corporate debtor to achieve all these ends.”
16.2.Keeping in view the objectives, discernible from the Preamble as also
from the Statement of Objects and Reasons of the Code and the observations
of this Court, we may now take an overview of the scheme and structure of the
relevant parts of the Code. Part I thereof contains the provisions regarding
title, extent, commencement and application of the Code as also defines
various expressions used and employed in the Code. Different provisions have
come into force on different dates, as permissible under proviso to sub-section
(3) of Section 1. Part II of the Code deals with insolvency resolution and
liquidation for corporate persons. Chapter I of Part II makes provision for its
applicability and also defines various expressions used in this Part (Sections 4
28 ArcelorMittal India (P) Ltd. v. Satish Kumar Gupta & Ors: (2019) 2 SCC 1
57
and 5). Chapter II of Part II contains the provisions for corporate insolvency
resolution process in Sections 6 to 32 whereas Chapter III of this Part II
contains the provisions for liquidation process in Sections 33 to 54
29
.
16.3. Though the provisions relating to ‘preferential transactions and relevant
time’ (in Section 43 of the Code) occur in Chapter III of Part II, relating to
liquidation process, but such provisions being for avoidance of certain
transactions and having bearing on the resolution process too, by their very
nature, equally operate over the corporate insolvency resolution process, and
hence, the resolution professional is obligated, by virtue of clause (j) of sub-
section (2) of Section 25 of the Code, to file application for avoidance of the
stated transactions in accordance with Chapter III. That being the position,
Section 43 of the Code comes into full effect in CIRP too.
Preferential transaction at a relevant time: concept and connotations
17.Having regard to the questions involved, a brief insight into the theory
relating to avoidance of certain transactions as being preferential would be
pertinent at this stage.
17.1.The basic concept of ‘preference’ as per the law dictionaries and lexicons
is the act of ‘paying or securing to one or more of his creditors, by an insolvent
debtor, the whole or part of their claims, to the exclusion of the rest’.
30
We may
29 Sections 4 to 33 came into force on 01.12.2016 whereas Section 33 to 54 came into force on
15.12.2016.
30 P. Ramanatha Aiyar’s Advanced Law Lexicon (5
th
Ed.-Vol 3, p.4002)
58
usefully take note of the meaning, definition and basic ingredients of
‘preference’ and ‘preferential transfer’, as defined in Black’s Law Dictionary
31
:
“preference. (15c) 1. The favouring of one person or thing over
another. 2. The person or thing so favoured. 3. The quality, state, or
condition of treating some persons or things more advantageously
than others. 4. Priority of payment given to one or more creditors by
a debtor; a creditor’s right to receive such priority. 5. Bankruptcy.
PREFERENTIAL TRANSFER .
insider preference. (1981) A transfer of property by a
bankruptcy debtor to an insider more than 90 days before but within
one year after the filing of the bankruptcy petition.
liquidation preference. (1936) A preferred shareholder’s right,
once the corporation is liquidated, to receive a specified distribution
before common shareholders receive anything.
voidable preference . See PREFERENTIAL TRANSFER ”
*** *** ***
“preferential transfer. (1874) Bankruptcy. A prebankruptcy
transfer made by an insolvent debtor to or for the benefit of a
creditor, thereby allowing the creditor to receive more than its
proportionate share of the debtor’s assets; specif., an insolvent
debtor’s transfer of a property interest for the benefit of a creditor
who is owed on an earlier debt, when the transfer occurs no more
than 90 days before the date when the bankruptcy petition is filed
or (if the creditor is an insider) within one year of the filing, so that
the creditor receives more than it would otherwise receive through
the distribution of the bankruptcy estate.
Under the circumstances described in 11 USCA §547, the
bankruptcy trustee may, for the estate’s benefit, recover a
preferential transfer from the transferee. – Also termed preference;
voidable preference; voidable transfer; preferential assignment;
preferential debt payment….”
17.2.It could be readily noticed that as far back as from 15
th
century, the
concept of ‘preference’ has been taken note of and the principles relating to
avoidance of certain preferences have evolved, particularly in the fields of
31 10
th
Edition – pp. 1369 and 1370
59
mercantile laws and more particularly in the laws governing insolvency and
bankruptcy
32
; and definitively from 1874, various jurisdictions have defined,
described and dealt with ‘preferential transfer’ as being the transaction where
an insolvent debtor makes transfer to or for the benefit of a creditor so that
such beneficiary would receive more than what it would have otherwise
received through the distribution of bankruptcy estate. Section 547 of US
Bankruptcy Code provides for the circumstances in which a bankruptcy trustee
may, for the benefit of the estate in question, recover a preferential transfer
from the transferee. Section 239 of the UK Insolvency Act, 1986 also provides
for the same measures for avoidance of preference given to any person at the
relevant time. The time factor also plays a crucial role in such measures of
avoidance. This ‘relevant time’ for the purpose of avoidance of preferential
transactions is now commonly referred to as the ‘look-back’ period.
Significantly, when the preferential transaction is with an unconnected party,
the look-back period is comparatively lesser than that of the transaction with a
connected party, who is referred to as ‘insider’ or ‘related party’
33
.
32 It may in the passing be observed that ‘an insolvency’ essentially refers to financial distress, i.e.,
financial state in which a person or entity is unable to pay its dues or meet with other akin obligations.
Insolvency may be temporary in character. ‘A bankruptcy’, on the other hand, essentially refers to the
legal process to regulate as to how an insolvent entity shall pay off his dues.
As noticed, the primary focus of IBC is ‘to ensure revival and continuation of the corporate
debtor by protecting the corporate debtor from its own management and from a corporate death by
liquidation’. In other words, insolvency resolution is the main object; and liquidation with bankruptcy is
the last resort.
33 We may also indicate that any attempt by an insolvent, of alienating or encumbering the assets in
favour of one person so as to cause harm to the interest of a bona fide creditor had been sternly dealt
with by the legislature even in relation to the individuals, as could be readily noticed from the
provisions contained in the erstwhile Presidency - Towns Insolvency Act, 1909 and Provincial
60
17.3.Coming now to the corporate personalities, it is elementary that by
the very nature and legal implications of incorporation, ordinarily, several
individuals and entities are involved in the affairs of a corporate person; and
impact of the activities of a corporate person reaches far and wide, with the
creditors being one of the important set of stakeholders. If the corporate
person is in crisis, where either insolvency resolution is to take place or
liquidation is imminent; and the transactions by such corporate person are
under scanner, any such transaction, which has an adverse bearing on the
financial health of the distressed corporate person or turns the scales in favour
Insolvency Act, 1920. These enactments stand repealed by IBC but the relevant provisions
therein give an insight into the concepts. Section 56 of the Act of 1909 provided thus:
“56.Avoidance of preference in certain cases. - (1) Every transfer of property,
every payment made, every obligation incurred, and every judicial proceeding taken or
suffered by any person unable to pay his debts as they became due from his own
money in favour of any creditor, with a view of giving that creditor a preference over
the other creditors, shall, if such person is adjudged insolvent on a petition presented
within three months after the date thereof, be deemed fraudulent and void as against
the official assignee.
(2) This section shall not affect the rights of any person making title in good faith
and for valuable consideration through or under a creditor of the insolvent.”
The relevant part of Section 69 of the Act of 1920 had been as under:
“69.Offences by debtors. – If a debtor, whether before or after the making
of an order of adjudication, -
*** *** ***
(c) fraudulently with intent to diminish the sum to be divided among his creditors
or to give an undue preference to any of his creditors, -
(i) has discharged or concealed any debt due to or from him, or
(ii) has made away with, charged, mortgaged or concealed any part of his
property of any kind whatsoever,
he shall be punishable on conviction with imprisonment which may extend to
one year.”
61
of one or a few of its creditors or third parties, at the cost of the other
stakeholders, has always been viewed with considerable disfavour
34
.
17.4.Noteworthy distinctive features, in the scheme of the Companies Act,
2013 and Insolvency and Bankruptcy Code, 2016, as regards preferences in
relation to the corporate personalities, are that while Section 328 of the Act of
2013 deals with fraudulent preference and Section 329 thereof deals with
transfers not in good faith but, on the other hand, in the Code, separate
provisions are made as regards the transactions intended at defrauding the
creditors (Section 49 IBC) as also for fraudulent trading or wrongful trading
(Section 66 IBC). The provisions contained in Section 43 of the Code,
however, indicate the intention of legislature that when a transaction falls
within the coordinates defined therein, the same shall be deemed to be a
preference given at a relevant time and shall not be countenanced. Therefore,
intent may not be of a defence or support of any preferential transaction that
falls within the ambit of Section 43 of the Code.
34 In relation to the corporate personalities, the concept of ‘fraudulent preference’, earlier embodied in
Section 531 of the Companies Act, 1956 now occurs in its modified form in Sections 328 and 329 of
the Companies Act, 2013. Tersely put, fraudulent preference means parting with assets of the
corporate person in favour of one or a few of its creditors, which has the effect of defeating the claim of
other creditors. Per Section 329 of the Act of 2013, any transfer of property by a company, other than
that in the ordinary course of business, if made within a period of one year before presentation of a
petition for winding up by the Tribunal and not in good faith and for valuable consideration, is regarded
as void against the liquidator. Per Section 328 of the Act of 2013, if a company has given preference
to one of its creditors or a surety or a guarantor for any of the debts or other liabilities and the
company does or suffers anything which has the effect of putting that person in a better position in the
event of company going into liquidation than the position he would have been in but for such
preference prior to six months of making winding up application, the Tribunal, on being satisfied that
the transaction was of a fraudulent preference, may order for restoring the position to what it would
have been if the preference had not been given. More particularly, as regards transfer of property, it is
provided in sub-section (2) of Section 328 that if the transaction is made six months before winding up
application, the Tribunal may declare such transaction invalid and restore the position.
62
17.5.At this juncture, we may usefully refer to paragraph 177 of UNCITRAL
Legislative Guide on Insolvency Law, as referred to and relied upon by learned
counsel for the respondent as also paragraphs 178 and 179 thereof, to
indicate the basic theory and principles governing the provisions under
consideration. In the said Guide, while dealing with the topic of treatment of
assets on commencement of insolvency proceedings, it is stated broadly on
the theory of avoidance of preferential transactions as follows:
“(c) Preferential transactions
(i) Criteria
177. Preferential transactions may be subject to avoidance where:
(a) the transaction took place within the specified suspect period;
(b) the transaction involved a transfer to a creditor on account of a
pre-existing debt; and (c) as a result of the transaction, the
creditor received a larger percentage of its claim from the debtor’s
assets than other creditors of the same rank or class (in other
words, a preference). Many insolvency laws also require that the
debtor was insolvent or close to insolvent when the transaction
took place and some further require that the debtor have an
intention to create a preference. The rationale for including these
types of transaction within the scope of avoidance provisions is
that, when they occur very close to the commencement of
proceedings, a state of insolvency is likely to exist and they
breach the key objective of equitable treatment of similarly
situated creditors by giving one member of a class more than they
would otherwise legally be entitled to receive.
178. Examples of preferential transactions may include payment
or set-off of debts not yet due; performance of acts that the debtor
was under no obligation to perform; granting of a security interest
to secure existing unsecured debts; unusual methods of payment,
for example, other than in money, of debts that are due; payment
of a debt of considerable size in comparison to the assets of the
debtor; and, in some circumstances, payment of debts in
response to extreme pressure from a creditor, such as litigation or
attachment, where that pressure has a doubtful basis. A set-off,
while not avoidable as such, may be considered prejudicial when
it occurs within a short period of time before the application for
63
commencement of the insolvency proceedings and has the effect
of altering the balance of the debt between the parties in such a
way as to create a preference or where it involves transfer or
assignment of claims between creditors to build up set-offs. A set-
off may also be subject to avoidance where it occurs in irregular
circumstances, such as where there is no contract between the
parties to the set-off.
(ii) Defences
179. One defence to an allegation that a transaction was
preferential may be to show that, although containing the
elements of a preference, the transaction was in fact consistent
with normal commercial practice and, in particular, with the
ordinary course of business between the parties to the
transaction. For example, a payment made on receipt of goods
that are regularly delivered and paid for may not be preferential,
even if made within proximity to the commencement of insolvency
proceedings. This approach encourages suppliers of goods and
services to continue to do business with a debtor that may be
having financial problems, but which is still potentially viable.
Other defences available under insolvency laws include that the
counterparty extended credit to the debtor after the transaction
and that credit has not been paid (the defence is limited to the
amount of the new credit); that the counterparty gave new value
for which it was not granted a security interest; the counterparty
can show that it did not know a preference would be created; that
the counterparty did not know or could not have known that the
debtor was insolvent at the time of the transaction; or that the
debtor’s assets exceeded its liabilities at the time of the
transaction. Some of these latter defences, in particular those
involving the intent of the parties to the transaction, suffer from the
disadvantage of being difficult to prove and may make avoidance
proceedings complex, unpredictable and lengthy.”
Analysing Section 43 of the Code
18. In the backdrop of the foregoing, we may now scrutinise Sections 43
and 44 of the Code. Section 44 provides for the consequences of an
64
offending
35
preferential transaction i.e., when the preference is given at a
relevant time. Under Section 44, the Adjudicating Authority may pass such
orders as to reverse the effect of an offending preferential transaction.
Amongst others, the Adjudicating Authority may require any property
transferred in connection with giving of preference to be vested in the
corporate debtor; it may also release or discharge (wholly or in part) any
security interest created by the corporate debtor. The consequences of
offending preferential transaction are, obviously, drastic and practically operate
towards annulling the effect of such transaction. Looking to the contents,
context and consequences, we are at one with the contentions urged on behalf
of the respondents with reference to the decisions in Devinder Singh (supra)
and other cited cases, that these provisions need to be strictly construed.
However, even if we proceed on strict construction of Section 43 of the Code,
the underlying principles and the object cannot be lost sight of. In other words,
the construction has to be such that leads towards achieving the object of
these provisions.
18.1.Looking at the broad features of Section 43 of the Code, it is noticed that
as per sub-section (1) thereof, when the liquidator or the resolution
professional, as the case may be, is of the opinion that the corporate debtor
has, at a relevant time, given a preference in such transactions and in such
manner as specified in sub-section (2), to any person/persons as referred to in
35 Note: Here the expression ‘offending’ is only to denote the unacceptability of such transaction and not
any criminality.
65
sub-section (4), he is required to apply to the Adjudicating Authority for
avoidance of preferential transactions and for one or more of the orders
referred to in Section 44. If twin conditions specified in sub-section (2) of
Section 43 are satisfied, the transaction would be deemed to be of preference.
As per clause (a) of sub-section (2) of Section 43, the transaction, of transfer
of property or an interest thereof of the corporate debtor, ought to be for the
benefit
36
of a creditor or a surety or a guarantor for or on account of an
antecedent financial debt or operational debt or other liabilities owed by the
corporate debtor; and as per clause (b) thereof, such transfer ought to be of
the effect of putting such creditor or surety or guarantor in beneficial position
than it would have been in the event of distribution of assets under Section
53.
37
18.2.However, merely giving of the preference and putting the beneficiary in a
better position is not enough. For a preference to become an offending one
for the purpose of Section 43 of the Code, another essential and rather prime
requirement is to be satisfied that such event, of giving preference, ought to
have happened within and during the specified time, referred to as “relevant
time”. The relevant time is reckoned, as per sub-section (4) of Section 43 of
the Code, in two ways: (a) if the preference is given to a related party (other
than an employee), the relevant time is a period of two years preceding the
36 It may be intended benefit or may even be unintended benefit
37 Section 53 IBC makes provision for distribution of the proceeds from sale of the liquidation assets,
in case of liquidation of the corporate debtor.
66
insolvency commencement date; and (b) if the preference is given to a person
other than a related party, the relevant time is a period of one year preceding
such commencement date. In other words, for a transaction to fall within the
mischief sought to be remedied by Sections 43 and 44 of the Code, it ought to
be a preferential one answering to the requirements of sub-section (2) of
Section 43; and the preference ought to have been given at a relevant time, as
specified in sub-section (4) of Section 43.
18.3.However, even if a transaction of transfer otherwise answers to and
comes within the scope of sub-sections (4) and (2) of Section 43 of the Code,
it may yet remain outside the ambit of sub-section (2) because of the exclusion
provided in sub-section (3) of Section 43.
18.4.Sub-section (3) of Section 43 specifically excludes some of the transfers
from the ambit of sub-section (2). Such exclusion is provided to: (a) a transfer
made in the ordinary course of business or financial affairs of the corporate
debtor or transferee
38
; (b) a transfer creating security interest in a property
acquired by the corporate debtor to the extent that such security interest
secures new value and was given at the time specified in sub-clause (i) of
clause (b) of Section 43(3) and subject to fulfilment of other requirements of
sub-clause (ii) thereof. The meaning of the expression “new value” has also
been explained in this provision.
38 Whether the expression “or”, as occurring in between the expressions ‘corporate debtor’ and
‘transferee’ in clause (a) of sub-section (3) of Section 43, is to be read as “and” has been one of the
significant questions raised in this matter and shall be dealt with hereafter later.
67
Indicting parts – deemed preference at a relevant time
19.In order to understand and imbibe the provisions concerning preference
at a relevant time, it is necessary to notice that as per the charging parts of
Section 43 of the Code i.e., sub-sections (4) and (2) thereof, a corporate
debtor shall be deemed to have given preference at a relevant time if the twin
requirements of clauses (a) and (b) of sub-section (2) coupled with the
applicable requirements of either clause (a) or clause (b) of sub-section (4), as
the case may be, are satisfied.
19.1.To put it more explicit, the sum total of sub-sections (2) and (4) is that a
corporate debtor shall be deemed to have given a preference at a relevant
time if: (i) the transaction is of transfer of property or the interest thereof of the
corporate debtor, for the benefit of a creditor or surety or guarantor for or on
account of an antecedent financial debt or operational debt or other liability; (ii)
such transfer has the effect of putting such creditor or surety or guarantor in a
beneficial position than it would have been in the event of distribution of assets
in accordance with Section 53; and (iii) preference is given, either during the
period of two years preceding the insolvency commencement date when the
beneficiary is a related party (other than an employee), or during the period of
one year preceding the insolvency commencement date when the beneficiary
is an unrelated party.
19.2.By way of these statutory provisions, legal fictions are created whereby
preference is deemed to have been given; and is deemed to have been given
68
at a relevant time, if the stated requirements are satisfied. Variegated features
of a deeming provision have been discussed by this Court in the case of
Pioneer Urban (supra) with reference to several of the past decisions, albeit in
the context of such deeming expression occurring in the Explanation added to
sub-clause (f) of Section 5(8) of the Code
39
. We may usefully extract some of
the relevant passages from the said decision in Pioneer Urban as follows:
19.2.1.As regards construction of a deeming fiction, this Court pointed out the
basic and settled principles in the following:
“88. In every case in which a deeming fiction is to be construed, the
observations of Lord Asquith in a concurring judgment in East End
Dwellings Co. Ltd. v. Finsbury Borough Council: 1952 AC 109 (HL)
are cited. These observations read as follows: (AC pp. 132-133)
“If you are bidden to treat an imaginary state of affairs as real,
you must surely, unless prohibited from doing so, also imagine as
real the consequences and incidents which, if the putative state of
affairs had in fact existed, must inevitably have flowed from or
accompanied it.... The statute says that you must imagine a
certain state of affairs. It does not say that, having done so, you
must cause or permit your imagination to boggle when it comes to
the inevitable corollaries of that state of affairs.”
These observations have been followed time out of number by the
decisions of this Court. (See, for example, M. Venugopal v. Divisional
Manager, LIC: (1994) 2 SCC 323 at page 329).
*** *** ***
94. Although a deeming provision is to deem what is not there in
reality, thereby requiring the subject-matter to be treated as if it were
39 Such discussion in Pioneer Urban essentially led to this Court holding that the said deeming
provision was clarificatory of the true legal position as it already obtained; and was to put beyond the
pale of doubt the fact that allottees are to be regarded as financial creditors within the meaning of the
enacting part contained in Section 5(8)(f) of the Code. The crucial aspects relating to Section 5(8) of
the Code shall be dilated hereafter during the discussion on the second issue involved in these
matters.
69
real, yet several authorities and judgments show that a deeming
fiction can also be used to put beyond doubt a particular construction
that might otherwise be uncertain. Thus, Stroud's Judicial Dictionary
of Words and Phrases (7
th
Edition, 2008), defines "deemed" as
follows:
"Deemed"- as used in statutory definitions "to extend the
denotation of the defined term to things it would not in ordinary
parlance denote”, is often a convenient device for reducing the
verbiage or an enactment, but that does not mean that wherever it
is used it has that effect; to deem means simply to judge or reach
a conclusion about something, and the words “deem” and
“deemed” when used in a statute thus simply state the effect or
meaning which some matter or things has-the way in which it is to
be adjudged; this need not import artificiality or fiction; it may
simply be the statement of an indisputable conclusion."
19.2.2. In Pioneer Urban, this Court further extracted extensively from the
decision in Hindustan Cooperative Housing Building Society Limited v.
Registrar, Cooperative Societies and Anr.: (2009) 14 SCC 302 on various
features of the processes of construction of different deeming provisions in
different contexts. Some of the relevant parts of such extraction (as occurring
in paragraph 95 of Pioneer Urban) read as follows (in SCC at pp. 524):
“ ‘… The word “deemed” is used a great deal in modern
legislation. Sometimes it is used to impose for the purposes of a
statute an artificial construction of a word or phrase that would not
otherwise prevail. Sometimes it is used to put beyond doubt a
particular construction that might otherwise be uncertain. Sometimes
it is used to give a comprehensive description that includes what is
obvious, what is uncertain and what is, in the ordinary sense,
impossible.’
(Per Lord Radcliffe in St. Aubyn v. Attorney General:1952 AC 15
(HL), AC p. 53)
14. ‘Deemed’, as used in statutory definitions [is meant]
‘to extend the denotation of the defined term to things it would not in
ordinary parlance denote, is often a convenient devise for reducing
70
the verbiage of an enactment, but that does not mean that wherever
it is used it has that effect; to deem means simply to judge or reach a
conclusion about something, and the words “deem” and “deemed”
when used in a statute thus simply state the effect or meaning which
some matter or thing has — the way in which it is to be adjudged;
this need not import artificiality or fiction; it may simply be the
statement of an undisputable conclusion.’
(Per Windener, J. in Hunter Douglas Australia Pty. v. Perma Blinds:
(1970) 44 Aust LJ R 257)
15. When a thing is to be “deemed” something else, it is to be
treated as that something else with the attendant consequences, but
it is not that something else (per Cave, J., in R. v. Norfolk County
Court: (1891) 60 LJ QB 379).
‘When a statute gives a definition and then adds that certain
things shall be “deemed” to be covered by the definition, it matters
not whether without that addition the definition would have covered
them or not.’ (Per Lord President Cooper in Ferguson v. McMillan :
1954 SLT 109 (Scot))
16. Whether the word “deemed” when used in a statute
established a conclusive or a rebuttable presumption depended upon
the context (see St. Leon Village Consolidated School District v.
Ronceray: (1960) 23 DLR (2d) 32 (Can)).
‘…. I … regard its primary function as to bring in something which
would otherwise be excluded.’
(Per Viscount Simonds in Barclays Bank Ltd. v. IRC: 1961 AC 509 at
AC p. 523.)
‘ “Deems” means “is of opinion” or “considers” or “decides” and
there is no implication of steps to be taken before the opinion is
formed or the decision is taken.’
[See R. v. Brixton Prison (Governor), ex p Soblen: (1963) 2 QB 243
at QB p. 315.]’”
19.3.On a conspectus of the principles so enunciated, it is clear that although
the word ‘deemed’ is employed for different purposes in different contexts but
one of its principal purpose, in essence, is to deem what may or may not be in
reality, thereby requiring the subject-matter to be treated as if real. Applying
the principles to the provision at hand i.e., Section 43 of the Code, it could
71
reasonably be concluded that any transaction that answers to the descriptions
contained in sub-sections (4) and (2) is presumed to be a preferential
transaction at a relevant time, even though it may not be so in reality. In other
words, since sub-sections (4) and (2) are deeming provisions, upon existence
of the ingredients stated therein, the legal fiction would come into play; and
such transaction entered into by a corporate debtor would be regarded as
preferential transaction with the attendant consequences as per Section 44 of
the Code, irrespective whether the transaction was in fact intended or even
anticipated to be so.
Exclusion part
19.4.Even when the above-stated indicting parts of Section 43 as occurring in
sub-sections (4) and (2) are satisfied and the corporate debtor is deemed to
have given preference at a relevant time to a related party or unrelated party,
as the case may be, such deemed preference may yet not be an offending
preference, if it falls into any or both of the exclusions provided by sub-section
(3) i.e., having been entered into during the ordinary course of business of the
corporate debtor or
40
transferee or resulting in acquisition of new value for the
corporate debtor.
40 As noticed, whether this expression “or”, as occurring in between the expressions ‘corporate
debtor’ and ‘transferee’ in clause (a) of sub-section (3) of Section 43, is to be read as “and” remains a
question to be dealt with.
72
Net concentrate of Section 43
19.5.Thus, the net concentrate of Section 43 is that if a transaction entered
into by a corporate debtor is not falling in either of the exceptions provided by
sub-section (3) and satisfies the three-fold requirements of sub-sections (4)
and (2), it would be deemed to be a preference during a relevant time, whether
or not in fact it were so; and whether or not it were intended or anticipated to
be so.
20.The analysis foregoing leads to the position that in order to find as to
whether a transaction, of transfer of property or an interest thereof of the
corporate debtor, falls squarely within the ambit of Section 43 of the Code,
ordinarily, the following questions shall have to be examined in a given case:
(i). As to whether such transfer is for the benefit of a creditor or a
surety or a guarantor?
(ii).As to whether such transfer is for or on account of an antecedent
financial debt or operational debt or other liabilities owed by the
corporate debtor?
(iii).As to whether such transfer has the effect of putting such creditor
or surety or guarantor in a beneficial position than it would have been in
the event of distribution of assets being made in accordance with
Section 53?
(iv).If such transfer had been for the benefit of a related party (other
than an employee), as to whether the same was made during the period
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of two years preceding the insolvency commencement date; and if such
transfer had been for the benefit of an unrelated party, as to whether the
same was made during the period of one year preceding the insolvency
commencement date?
(v)As to whether such transfer is not an excluded transaction in
terms of sub-section (3) of Section 43?
21.Having taken note of the salient features of Section 43 of the Code and
the questions germane for its applicability over any transaction, we may now
examine the questions calling for determination in these appeals. Obviously, if
the transactions in question are to fall squarely within the mischief of Section
43, they must satisfy all the specifications and ingredients of sub-sections (2)
and (4) of Section 43 and ought not to be within the exclusion provided in sub-
section (3) thereof.
Whether impugned transactions are preferential, falling within the ambit
of sub-section (2) of Section 43 IBC
22.For the purpose of dealing with the crucial question as to whether the
impugned transactions are preferential and fall within the prescription of sub-
section (2) of Section 43 of the Code, appropriate it shall be to recapitulate and
summarize the overall scenario of this case.
22.1.The fact that JAL, a public listed company with more than 5 lakh
individual shareholders, is the holding company of the corporate debtor JIL is
neither of any doubt nor of any dispute. As on 31.03.2017, JAL owned 71.64%
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of shares of JIL, having a value of Rupees 995 crores. The background had
been that when in the year 2003, JAL was awarded the rights for construction
of an expressway and a concession agreement was entered into with the
Yamuna Expressway Industrial Development Authority, JIL was set up as a
special purpose vehicle. Finance was obtained from a consortium of banks
against partial mortgage of land acquired and pledge of 51% of the
shareholding of JAL. Housing plans were envisaged for construction of real
estate projects in two locations of the land acquired, one in Wish Town, Noida
and another in Mirzapur.
22.1.1.Shorn of other details which may not be necessary for the present
purpose, relevant it is to notice that JIL was declared NPA by Life Insurance
Corporation of India on 30.09.2015 and by some of its other lenders on
31.03.2016. Then, IDBI Bank Limited instituted a petition under Section 7 of
the Code before NCLT, seeking initiation of Corporate Insolvency Resolution
Process against JIL, while alleging that JIL had committed a default to the tune
of Rs. 526.11 crores in repayment of its dues. On 09.08.2017, NCLT passed
an order under Section 7 of the Code and appointed an Interim Resolution
Professional
41
-
42
. The IRP made an application on 06.02.2018, seeking
directions that the transactions entered into by the directors and promoters of
corporate debtor creating mortgages of 858 acres of immovable property
41 CIRP in relation to JIL is underway by virtue of the orders passed by this Court on 09.08.2018 and
06.11.2019 (as referred to in paragraphs 6.2 and 6.3.1 - supra)
42 This date i.e., 09.08.2017 is the “insolvency commencement date” for the purpose of the questions
under consideration
75
owned by it to secure the debts of JAL are preferential, undervalued, wrongful,
and fraudulent; and hence, the security interest created by corporate debtor
JIL in favour of the lenders of JAL be discharged and such properties be
deemed to be vested in corporate debtor. The NCLT allowed the said
application on 16.05.2018 with respect to six of the impugned transactions
covering about 758 acres of land. On the appeals filed by lenders of JAL,
NCLAT, by its impugned order dated 01.08.2019, set aside the order passed
by NCLT and held that such lenders of JAL were entitled to exercise their
rights under the Code.
22.2.At this juncture, we may again take note of the transactions that were
questioned by IRP for the purpose of the application for avoidance, which had
been the following: 1. Mortgage deed dated 29.12.2016 for 167.229 acres of
land (Property No. 1) executed by JIL in favour of Axis Trustee Services
Limited to provide an additional security for term loans of Rs. 21081.5 crores
sanctioned as a consortium to JAL; 2. Mortgage deed dated 29.12.2016 for
167.9615 acres of land (Property No. 2), again executed by JIL in favour of
Axis Trustee Services Limited to provide an additional security for term loans
of Rs.21081.5 crores sanctioned by the consortium to JAL; 3. Mortgage deed
dated 07.03.2017 for 158.1739 acres of land (Property No. 3) executed by JIL
in favour of IDBI Trustee-ship Services Limited for term loan of Rs.1200 crores
granted by ICICI Bank to JAL; 4. Mortgage deed dated 07.03.2017 for
151.0063 acres of land (Property No. 4), again executed by JIL in favour of
76
IDBI Trustee-ship Services Limited for term loan of Rs.1200 crores granted by
ICICI Bank to JAL; 5. Mortgage deed dated 24.05.2016 for 25.0040 acres of
land (Property No. 5) executed by JIL in favour of IDBI Trustee-ship Services
Limited, as additional security against the facility agreement dated 29.08.2012
between Standard Chartered Bank and JAL for Rs.400 crores and other
facilities, respectively for Rs.450 crores, Rs.538.16 crores and Rs.81.84 crores
as also for working capital facility of Rs.297 crores; and 6. Mortgage deed
dated 04.03.2016 for 90 acres of land (Property No. 6), executed by JIL in
favour of State Bank of India for Short Term Loan Facility to JAL to the tune of
Rs.1000 crores.
22.2.1.As noticed, 09.08.2017 is the insolvency commencement date in this
case. The transactions in question, even if of putting the concerned properties
under mortgage with the lenders, carry the ultimate effect of working towards
the benefit and advantage of the borrower i.e., JAL who obtained loans and
finances by virtue of such transactions. It is true that there had not been any
creditor-debtor relationship between the lender banks and corporate debtor JIL
but that will not be decisive of the question of the ultimate beneficiary of these
transactions. The mortgage deeds in question, entered by the corporate debtor
JIL to secure the debts of JAL, obviously, amount to creation of security
interest to the benefit of JAL.
22.2.2.Now, the capacity of JAL is admittedly that of the holding company
of JIL as its largest equity shareholder ( with approximately 71.64 %
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shareholding). Moreover, JAL had admittedly been the operational creditor of
JIL, for an amount of approximately Rs. 261.77 crores. JAL itself maintains
that it had been providing financial, technical and strategic support to JIL in
various ways. It is the assertion that apart from making investment in terms of
equity shareholding to the tune of Rs. 995 crores, JAL had pledged its
70,83,56,087 equity shares held in JIL in favour of the lenders of JIL; had also
entered into Promoter Support Agreement to the lenders of JIL to meet the
DSRA obligation of JIL towards its lenders; and had further extended Bank
Guarantees of Rs. 212 crores to meet the DSRA obligation of JIL. These
assertions, in our view, put JAL in such capacity that it is a related party to JIL
and is a creditor as also surety of JIL. In other words, the corporate debtor JIL
owed antecedent financial debts as also operational debts and other liabilities
towards JAL.
22.3.In the scenario taken into comprehension hereinabove, there is nothing
to doubt that the corporate debtor JIL has given a preference by way of the
mortgage transactions in question for the benefit of its related person JAL (who
has been the creditor as also surety for JIL) for and on account of antecedent
financial debts, operational debts and other liabilities owed to such related
person. In the given fact situation, it is plain and clear that the transactions in
question meet with all the requirements of clause (a) of sub-section (2) of
Section 43.
78
22.4.It is also not far to seek that in the given scenario, the requirements of
clause (b) of sub-section (2) of Section 43 are also met fair and square. On
behalf of the respondents, emphasis is laid on the fact that in the distribution
waterfall in case of liquidation (per Section 53 of the Code), JAL, as an
operational creditor, stands much lower in priority than the other creditors and
stakeholders. Such submissions, in our view, only strengthen the position that
by way of the impugned transfers, JAL is put in a much beneficial position than
it would have been in the absence of such transfers. It has rightly been
contended on behalf of the appellants that with the transactions in question,
JAL has been put in an advantageous position vis-à-vis other creditors on the
counts that: a) JAL received a huge working capital (approx. Rupees 30000
crores), by way of loans and facilities extended to it by the respondent-lenders;
and b) by way of the transactions in question, JAL’s liability towards its own
creditors shall be reduced, in so far as the value of the mortgaged properties is
concerned, which is said to be approximately Rs. 6000 crores. As a necessary
corollary of the beneficial and advantageous position of the related party JAL
with creation of such security interest over the properties of JIL, in the
eventuality of distribution of assets under Section 53, the other creditors and
stakeholders of JIL shall have to bear the brunt of the corresponding
disadvantage because such heavily encumbered assets will not form the part
of available estate of the corporate debtor. Obviously, JAL stands dearly
benefited and has derived such benefits at the cost, and in exclusion, of the
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other creditors and stakeholders of the corporate debtor JIL. The applicability
of clauses (a) and (b) of sub-section (2) of Section 43 of the Code is clear and
complete in relation to the impugned six transactions.
22.5.Therefore, in relation to the present case, the answers to questions (i),
(ii) and (iii) as referred in paragraph 20 are that: the impugned transactions
had been of transfers for the benefit of JAL, who is a related party of the
corporate debtor JIL and is its creditor and surety by virtue of antecedent
operational debts as also other facilities extended by it; and the impugned
transactions have the effect of putting JAL in a beneficial position than it would
have been in the event of distribution of assets being made in accordance with
Section 53 of the Code. Thus, the corporate debtor JIL has given a preference
in the manner laid down in sub-section (2) of Section 43 of the Code.
The requirements of sub-section (4) of Section 43 IBC - related party and
look-back period
23.Even when all the requirements of sub-section (2) of Section 43 of the
Code are satisfied, in order to fall within the mischief sought to be remedied by
Section 43, the questioned preference ought to have been given at a relevant
time. In other words, for a preference to become an avoidable one, it ought to
have been given within the period specified in sub-section (4) of Section 43.
The extent of ‘relevant time’ is different with reference to the relationship of the
beneficiary with the corporate debtor inasmuch as, for the persons falling
within the expression ‘related party’ within the meaning of Section 5 (24) of the
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Code, such period is of two years before the insolvency commencement date
whereas it is one year in relation to the person other than a related party. The
conceptions of, and rationale behind, such provisions could be noticed in the
excerpts from the interim report of Law Reforms Committee, as referred on
behalf of the appellants. We may usefully extract the same as under: -
“c. TRANSACTIONS WITH RELATED PARTIES
The law on avoidance in the UK provides for close scrutiny of
transactions entered into with persons connected with the
company (other than employees) by incorporating longer time
periods in relation to which such transactions can be challenged.
Thus, while the relevant time period for avoiding preferences is six
months prior to the onset of insolvency, the time period is
increased to two years in the case of persons connected with the
company. Similarly, for late floating charges other than for new
value, the vulnerability period for non-connected persons is twelve
months while it is two years in the case of connected persons. The
avoidance provisions under the CA 2013 does not provide for
longer time periods in case the transactions are with connected
persons. It is submitted that providing for longer time periods for
vulnerability would be significant in improving the efficacy of these
provisions. This is because a wider range of transactions
diminishing creditor wealth entered into with insiders occur not in
the ‘zone of insolvency’ but as soon as early signals of trouble are
visible. Such insiders have superior information of the company’s
deteriorating financial position and may raid corporate assets
knowing that the company may become insolvent. These
provisions are of special significance in the Indian context where
even the larger corporates are often promoter/family controlled
with such insiders often enjoying significant informational
advantages over even well-advised secured lenders.”
23.1.Before examining as to whether the questioned preferences were given
at the relevant time as specified in sub-section (4) of Section 43, we may deal
81
with one part of the submissions made on behalf of some of the respondents
that in view of the look-back periods provided in sub-section (4), the provisions
of Section 43 of the Code, by their very nature, would come into operation at
least one year after the enactment of the Code and else, it would be giving
retrospective effect to these provisions which is not permissible. The
submissions, in our view, remain bereft of substance.
23.1.1. The scheme of IBC is to disapprove and disregard such preferential
transaction which falls within the ambit of Section 43 and to ensure that any
property likely to have been lost due to such transaction is brought back to the
corporate debtor; and if any encumbrance is created, to remove such
encumbrance so as to bring the corporate debtor back on its wheels or in other
event (of liquidation), to ensure pro rata, equitable and just distribution of its
assets. Such provisions as contained in Sections 43 and 44 came into
operation as the comprehensive scheme of corporate insolvency resolution
and liquidation from the date of being made effective; and merely because
look-back period is envisaged, for the purpose of finding ‘relevant time’, it
cannot be said that the provision itself is retrospective in operation. Reference
to the decision of this Court in the case of Purbanchal Cables (supra) is
entirely inapt. In the said case, by virtue of the enactment in question, i.e.,
Interest on Delayed Payments to Small Scale and Ancillary Industrial
Undertakings Act, 1993, a new liability of high rate of interest was created
against the buyer in displacement of the general principles of Section 34 of the
82
Code of Civil Procedure. Hence, this Court found that the enactment creating
new liability would only be prospective in operation. As noticed, fraudulent
preferences in the affairs of corporate persons had been dealt with by the
legislature in the Companies Act, 1956 and have also been dealt with in the
Act of 2013. Though therein, essentially, the fraudulent preferences and
transfers not in good faith are dealt with whereas, in the scheme of IBC,
separate provisions are made as regards the transactions intended at
defrauding the creditors (Section 49 IBC) as also for fraudulent trading or
wrongful trading (Section 66 IBC). The provisions contained in Section 43,
however, indicate the intention of legislature that when a preference is given at
a relevant time and thereby, the beneficiary of preference acquires
unwarranted better position in the event of distribution of assets, the same
may not be countenanced. Looking to the scheme of IBC and the principles
applicable for the conduct of the affairs of a corporate person, it cannot be said
that anything of a new liability has been imposed or a new right has been
created. Maximisation of value of assets of corporate persons and balancing
the interests of all the stakeholders being the objectives of the Code, the
provisions therein need to be given fuller effect in conformity with the intention
of the legislature.
23.1.2.We may also observe that if the contentions urged on behalf of the
respondents were to be accepted, the result would be of postponing the
effective date of operation of sub-section (4) of Section 43 by two years in the
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case of related party and to one year in the case of unrelated party, and
thereby, effectively postponing the application of entire Section 43 for a period
of two years! That cannot be and had never been the intention of legislature. It
is also noteworthy that by virtue of proviso to sub-section (3) of Section 1 of
the Code, different dates can be provided for enforcement of different
provisions of the Code; and in fact, different provisions have been brought into
effect on different dates. However, after coming into force of the provisions, if a
look-back period is provided for the purpose of any particular enquiry, it cannot
be said that the operation of the provision itself would remain in hibernation
until such look-back period from the date of commencement of the provision
comes to an end. There is nothing in the Code to indicate that any provision in
Chapter II or Chapter III be taken out and put in operation at a later date than
the date notified. Such contentions being totally devoid of substance, deserve
to be, and are, rejected.
24. We may now take up the question as to which of the transactions in
question would entail in giving preference at a relevant time or otherwise. As
noticed, the preference is given to JAL who is a related party of JIL. Hence, the
look-back period is two years preceding insolvency commencement date i.e.,
09.08.2017 per clause (a) of sub-section (4) of Section 43; and accordingly,
the point of enquiry would be as to whether the preference had been given
during the period of two years preceding 09.08.2017. Therefore, the
transactions commencing from 10.08.2015 until the date of insolvency
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commencement shall fall under the scanner. As noticed, it has been one of the
major contentions of the respondents that most of the impugned transactions
were not of creation of any new encumbrance by JIL and in fact, most of the
properties in question had already been under mortgage with the respective
lenders much before the period under consideration i.e., much before
10.08.2015.
24.1.It may at once be noticed that the transaction that was clearly falling
beyond the period under consideration was, in fact, kept out of the purview of
Section 43 of the Code by NCLT itself, being that relating to Property No. 7 (as
mentioned in paragraph 4.5 hereinbefore).
24.2.So far as the transaction relating to Property No. 6 is concerned, being
the mortgage deed dated 04.03.2016, towards Short-Term Loan Facility to JAL
of Rs. 1000 crores by State Bank of India, the same obviously falls within the
look-back period. Even if JAL had allegedly entered into the facility agreement
with this lender bank on 26.03.2015, this date is hardly of any bearing so far as
transaction by the corporate debtor JIL is concerned, which was made only on
04.03.2016.
24.3.In relation to the transactions concerning Property No. 1 and Property
No. 2, for securing loans by the Consortium to JAL, it is submitted that there
had been initial mortgage dated 24.02.2015 that was released on 15.09.2015
and a so-called re-mortgage was made on 15.09.2015 and thereafter, this was
also released on 29.12.2016 and again the so-called re-mortgage was made
85
on 29.12.2016. It is sought to be asserted that it had not been a case of
creation of a fresh mortgage. Similarly, in relation to the transactions
concerning Property No. 3, it is alleged that there had been initial mortgage
dated 12.05.2014 for 433.35 acres of land of which, 240 acres was released
on 30.12.2015, 35.05 acres was released on 24.06.2016 and the remaining
158.1739 acres of land was also released on 07.03.2017 but was re-
mortgaged on this very date 07.03.2017. As regards Property No. 4, it is
alleged that the same was put under mortgage initially on 12.05.2014, was
released on 07.03.2017 and was re-mortgaged on this very date 07.03.2017.
As regards Property No. 5, it is alleged that the same was put under mortgage
initially on 24.06.2009, the mortgage was extended on 27.11.2012 and on
23.03.2013; it was released on 04.11.2015 and was re-mortgaged on
24.05.2016.
24.3.1.It has been one of the major contentions of the respondents that most
of the impugned transactions were not of creation of any new encumbrance by
JIL and in fact, most of the properties in question had already been under
mortgage with the respective lenders. The submissions of respondents in
relation to the aforesaid five transactions, that they had been of so-called re-
mortgage/s, carry their own shortcomings and cannot be accepted. In the first
place, we are clearly of the view that on release by the mortgagee, the
mortgage ceases to exist and it is difficult to countenance the concept of a so-
called re-mortgage. The so-called re-mortgage, on all its legal effects and
86
connotations, could only be regarded as a fresh mortgage; and it obviously
befalls on the mortgagor to consider at the time of creating any fresh mortgage
as whether such a transaction is expedient and whether it should be entered
into at all. Noticeable it is that in relation to Property No. 1 and 2, even if the
initial mortgage had been dated 24.02.2015 falling beyond the look-back
period, it was released on 15.09.2015 and this date (15.09.2015) falls within
the look-back period. Even if the same property has been again mortgaged
with the same lender/s on the same day of release, the same cannot be
countenanced for the transaction operates towards extending unwarranted
preference to JAL by the corporate debtor JIL. Significant it is to notice that
while making this mortgage dated 15.09.2015, the facility amount being
obtained by JAL got swelled from Rs. 3250 crores to a whopping Rs. 24109
crores and the number of creditors went up from 2 to 24. Such a transaction, in
our view, had only been of a fresh mortgage to secure extra facilities obtained
by JAL and thereby, extending unwarranted advantage to JAL at the cost of
the estate of JIL. In the other transaction dated 29.12.2016, by which the
properties in question were again put under mortgage with the lender/s, the
facility amount was shown as Rs. 23491 crores. The transactions on
15.09.2015 and 29.12.2016 cannot be given credence with reference to the
previous mortgage deed dated 24.02.2015. Similar is the case in relation to
Property No. 3. Even when the previous mortgage was given on 12.05.2014
i.e., beyond the look-back period, there had been release deeds on
87
30.12.2015 and 26.06.2016 as regards certain parcels of land. So far the
release of land to JIL is concerned, the same causes no problem and only
works to the benefit of JIL and its stakeholders. However, when the remaining
land was also released on 07.03.2017, its fresh mortgage, even if on the same
date, cannot be countenanced and is hit by Section 43, being a deemed
preference. The very same considerations apply in relation to the Property No.
4 too. As regards Property No. 5, even if there had been certain previous
mortgage transactions falling beyond the look-back period, the property got
released on 04.11.2015; and thereafter, the fresh mortgage on 24.05.2016,
with increased facility amount from Rs. 1470 crores to Rs. 1767 crores, suffers
from the same vice, of being a deemed preference to a related party during the
period of two years preceding the insolvency commencement date.
24.4.For what has been discussed hereinabove, the conclusion is inevitable
that the impugned preference was given to a related party during a relevant
time. However, before concluding on this part of discussion, we may also
observe that reference to the decisions of Madras and Bombay High Courts in
the case of IDBI Bank Ltd and Monarch Enterprises respectively, is neither
apposite nor advances the cause of the respondents for the reason that the
said decisions had essentially been on the question/s as to whether the
impugned transactions were of fraudulent preference per Section 531 or
lacking in good faith per Section 531A of the Companies Act, 1956. In fact, in
the case of IDBI Bank (supra) the corporate debtor attempted to transfer one
88
of its property to the appellant bank, who was one of its creditors and in that
regard, certain transactions like agreement for sale and handing over
possession were suggested and it was alleged that the contract for sale was
partly performed about one year and four months prior to the winding-up
proceedings; and such being beyond the look-back period of six months as
envisaged by Section 531 of the Companies Act, 1956, it was argued that it
had not been a fraudulent transfer. The contentions were not accepted by the
Single Judge and by the Division Bench of the High Court for the reason that
mere handing over of possession or documents did not complete the sale;
rather the Court was of the view that such documents were created only in
order to avoid the transaction being called a fraudulent preference. Apart that
the element of fraud is not the essential ingredient of Section 43 of the Code,
the said decision in IDBI Bank, on the approach of the Courts towards
corporate transactions makes it clear that any transaction favouring one
stakeholder at the cost of the other is viewed with disfavour and is
disapproved, particularly if it takes place during the prescribed look-back
period.
24.5.For what has been discussed hereinabove, the answer to question (iv)
as referred in paragraph 20 is that the transactions in question had been of
deemed preference to related party JAL by the corporate debtor JIL during the
look-back period of two years and have rightly been held covered within the
period envisaged by sub-section (4) of Section 43 of the Code.
89
Ordinary course of business or financial affairs
25.Even when it is held that the impugned transactions answer to the
requirements of sub-section (2) of Section 43 and fall within the period
specified in sub-section (4) thereof, the question still remains as to whether the
impugned transactions do or do not fall within the exclusion provided by sub-
section (3) of Section 43 of the Code? As noticed, two types of transfers, as
specified in clauses (a) and (b) of sub-section (3) of Section 43, are not to be
treated as preference for the purpose of sub-section (2). It has been the
mainstay of respondent-lenders that, in any case, the transfers in question
were made in the ordinary course of their business and hence, fall within
clause (a) of Section 43(3) that excludes the transfer made in the ordinary
course of business or financial affairs of the corporate debtor or the transferee.
It has been forcefully argued that the lenders of JAL are the transferees in the
transactions in question and their ordinary course of business being of
providing financial support with loans and advances, such transfers are not
included in sub-section (2) of Section 43 by virtue of the exclusion provided in
sub-section (3) thereof. On the other hand, the main plank of submissions on
behalf of the appellants has been that the expression “or” occurring in clause
(a) of sub-section (3) of Section 43, seemingly disjunctive of corporate debtor
on one hand and transferee on the other, is required to be read as “and” so as
to be conjunctive and covering only the transfers made in the ordinary course
of business or financial affairs of the corporate debtor and the transferee. It is
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submitted on behalf of the appellants that such mortgage transactions had
neither been in the ordinary course of business or financial affairs of the
corporate debtor JIL nor secure new value in the property acquired by the
corporate debtor and hence, are not excepted transactions within the meaning
of sub-section (3) of Section 43 of the Code.
25.1.Having taken into comprehension the scheme of the Code and the
purpose and purport of the provisions contained in Section 43, we find force
and substance in the submissions made on behalf of the appellants.
25.2.As noticed, in the scheme of such provisions in the Code, the underlying
concept is to disregard and practically annul such transactions which appear,
in the course of insolvency resolution or liquidation, to be preferential so as to
minimise the potential loss to other stakeholders in the affairs of the corporate
debtor, particularly its creditors. What is to be examined for the purpose of
Section 43 is the conduct and affairs of the corporate debtor. If the beneficiary
of the transaction in question is a related party of the corporate debtor, the
period of enquiry is enlarged to two years whereas this period is one year in
other cases. During such scanning, by virtue of sub-section (3) of Section 43,
two types of transfers are kept out of the purview of sub-section (2), which
would not be treated as preference. Though in the present case, we are
concerned only with the phraseology occurring in clause (a) of sub-section (3)
but, we may usefully refer to clause (b) thereof, for an insight into the
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underlying concept for providing exception in regard to certain transfers and
keeping them out of the purview of ‘preference’.
25.2.1.By virtue of clause (b) of sub-section (3) [read with Explanation
thereto], any transfer creating a security interest in the property ‘acquired’ by
the corporate debtor is not to be treated as preference to the extent that such
security interest secures new value in monetary terms or in terms of goods,
services or new credit or in release of a previously transferred property. Any
micro dissection of clause (b) of sub-section (3) of Section 43 is not required in
the present case. Suffice it to notice that even a bare look at the provision
brings forth the concept that value enhancement or strengthening of the
corporate debtor ought to be the result of a transfer, if it is to remain out of the
ambit of sub-section (2) and not to fall within the mischief of being preferential.
25.2.2. Another feature of vital importance is that the matter is examined with
reference to the dealing and conduct of the corporate debtor; and qua the
health and prospects of the corporate debtor. Applying the well-known
principles of noscitur a sociis, whereunder the questionable meaning of a
doubtful word could be derived and understood from its associates and
context; and usefully recapping that the scheme of Section 43 of the Code is
essentially of scanning through the affairs of the corporate debtor and to
discredit and disregard such transaction by the corporate debtor which tends
to give unwarranted benefit to one of its creditor/surety/guarantor over others,
in our view, the purport of clause (a) of sub-section (3) of Section 43 is also
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principally directed towards the corporate debtor’s dealings. In other words,
the whole of conspectus of sub-section (3) is that only if any transfer is found
to have been made by the corporate debtor, either in the ordinary course of its
business or financial affairs or in the process of acquiring any enhancement in
its value or worth, that might be considered as having been done without any
tinge of favour to any person in preference to others and thus, might stand
excluded from the purview of being preferential, subject to fulfilment of other
requirements of sub-section (3) of Section 43.
25.3.Needless to reiterate that if the transfer is examined with reference to
the ordinary course of business or financial affairs of the transferee alone, it
may conveniently get excluded from the rigour of sub-section (2) of Section 43,
even if not standing within the scope of ordinary course of business or financial
affairs of the corporate debtor. Such had never been the scheme of the Code
nor the intent of Section 43 thereof. It has rightly been contended on behalf of
the appellants that for the purpose of exception under clause (a) of sub-section
(3) of Section 43, the intent of legislature is required to be kept in view. If the
ordinary course of business or financial affairs of the transferee (lenders of JAL
in the present case) would itself be decisive for exclusion, almost every
transfer made to the transferees like the lender-banks/financial institutions
would be taken out of the net, which would practically result in frustrating the
provision itself.
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25.4.It remains trite that an interpretation that defeats the scheme, intent and
object of the statutory provision is to be eschewed and for that matter, if
necessary, by applying the principles of purposive interpretation rather than
literal. In the case of R.M.D. Chamarbaugwala (supra), the Constitution Bench
of this Court has held that well known cannons of construction of statutes
permit the Court to read the word “or” as “and” after looking at the clear
intention of the legislature. In the case of Mazagaon Dock Ltd (supra), when
the expression “or” occurring in sub-section (2) of Section 42 of the Income
Tax Act, 1922 did appear bringing out the result which could not have been
intended, the same was read in the context as meaning “and”. This Court said:
“10. The word “or” in the clause would appear to be rather
inappropriate, as it is susceptible of the interpretation that when
some profits are made but they are less than normal profits, tax
could only be imposed either on the one or on the other, and that
accordingly a tax on the actual profits earned would bar the
imposition of tax on profits which might have been received.
Obviously, that could not have been intended, and the word “or”
would have to be read in the context as meaning “and”….”
25.5.Looking to the scheme and intent of the provisions in question and
applying the principles aforesaid, we have no hesitation in accepting the
submissions made on behalf of the appellants that the said contents of clause
(a) of sub-section (3) of Section 43 call for purposive interpretation so as to
ensure that the provision operates in sync with the intention of legislature and
achieves the avowed objectives. Therefore, the expression “or”, appearing as
disjunctive between the expressions “corporate debtor” and “transferee”, ought
to be read as “and”; so as to be conjunctive of the two expressions i.e.,
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“corporate debtor” and “transferee”. Thus read, clause (a) of sub-section (3) of
Section 43 shall mean that, for the purposes of sub-section (2), a preference
shall not include the transfer made in the ordinary course of the business or
financial affairs of the corporate debtor and the transferee. Only by way of
such reading of “or” as “and”, it could be ensured that the principal focus of the
enquiry on dealings and affairs of the corporate debtor is not distracted and
remains on its trajectory, so as to reach to the final answer of the core question
as to whether corporate debtor has done anything which falls foul of its
corporate responsibilities.
25.6.The result of discussion in the foregoing paragraphs is that the transfers
in question could be considered outside the purview of sub-section (2) of
Section 43 of the Code only if it could be shown that same were made in the
‘ordinary course of business or financial affairs’ of the corporate debtor JIL and
the transferees. Even if transferees submit that such transfers had been in the
ordinary course of their business, the question would still remain if the
transfers were made in the ordinary course of business or financial affairs of
the corporate debtor JIL so as to fall within the exception provided by clause
(a) of sub-section (3) of Section 43 of the Code.
25.6.1.Thus, the enquiry now boils down to the question as to whether the
impugned transfers were made in the ordinary course of business or financial
affairs of the corporate debtor JIL. It remains trite that an activity could be
regarded as ‘business’ if there is a course of dealings,which are either actually
95
continued or contemplated to be continued with a profit motive.
43
As regards
the meaning and essence of the expression ‘ordinary course of business’,
reference made by the appellants to the decision of the High Court of Australia
in Downs Distributing Co (supra), could be usefully recounted as under:-
“As was pointed out in Burns v. McFarlane the issues in sub-s.
2(b) of s. 95 of the Bankruptcy Act 1924-1933 are “(1) good faith;
(2) valuable consideration; and (3) ordinary course of business.”
This last expression it was said “does not require an investigation
of the course pursued in any particular trade or vocation and it
does not refer to what is normal or usual in the business of the
debtor or that of the creditor.” It is an additional requirement and is
cumulative upon good faith and valuable consideration. It is,
therefore, not so much a question of fairness and absence of
symptoms of bankruptcy as of the everyday usual or normal
character of the transaction. The provision does not require that
the transaction shall be in the course of any particular trade,
vocation or business. It speaks of the course of business in
general. But it does suppose that according to the ordinary and
common flow of transactions in affairs of business there is a
course, an ordinary course. It means that the transaction must
fall into place as part of the undistinguished common flow of
business done, that it should form part of the ordinary course
of business as carried on, calling for no remark and arising
out of no special or particular situation.”
(emphasis supplied)
25.6.2. Taking up the transactions in question, we are clearly of the view that
even when furnishing a security may be one of normal business practices, it
would become a part of ‘ordinary course of business’ of a particular corporate
entity only if it falls in place as part of ‘the undistinguished common flow of
business done’; and is not arising out of ‘any special or particular situation’, as
rightly expressed in Downs Distributing Co (supra). Though we may assume
43 vide State of Andhra Pradesh v. H. Abdul Bakshi and Bros.: 1964 STC 644 (at p. 647).
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that the transactions in question were entered in the ordinary course of
business of bankers and financial institutions like the present respondents but
on the given set of facts, we have not an iota of doubt that the impugned
transactions do not fall within the ordinary course of business of the corporate
debtor JIL. As noticed, the corporate debtor has been promoted as a special
purpose vehicle by JAL for construction and operation of Yamuna Expressway
and for development of the parcels of land along with the expressway for
residential, commercial and other use. It is difficult to even surmise that the
business of JIL, of ensuring execution of the works assigned to its holding
company and for execution of housing/building projects, in its ordinary course,
had inflated itself to the extent of routinely mortgaging its assets and/or
inventories to secure the debts of its holding company. It had also not been the
ordinary course of financial affairs of JIL that it would create encumbrances
over its properties to secure the debts of its holding company. In other words,
we are clearly of the view that the ordinary course of business or financial
affairs of the corporate debtor JIL cannot be taken to be that of providing
mortgages to secure the loans and facilities obtained by its holding company;
and that too at the cost of its own financial health. As noticed, JIL was already
reeling under debts with its accounts with some of the lenders having been
declared NPA; and it was also under heavy pressure to honour its commitment
to the home buyers. In the given circumstances, we have no hesitation in
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concluding that the transfers in questions were not made in ordinary course of
business or financial affairs of the corporate debtor JIL.
25.7.The submissions that security was disclosed in the Annual Reports or
that none of the creditors expressed dissent are of no effect because such
disclosure or want of objection by creditors, by themselves, do not operate as
estoppel against anybody nor would take the transaction out of the purview of
the legal fiction predicated in Section 43, if it is otherwise of a preference at a
relevant time. Similarly, the distinction between ‘NPA’ and ‘wilful default’; the
submission that NPA could be regularised; and further the submission that the
mortgages were created before JIL was declared NPA, are hardly of any
bearing on the question as to whether the impugned transactions had been in
the ordinary course of business or financial affairs of JIL. Thus, reference to
the decisions like that in Keshavlal Khemchand and Jah Developers (supra) is
not of any consequence and need not be dilated upon. The answer to this
question, in our view, could only be in the negative. That is to say that the
impugned transactions had not been in the ordinary course of business or
financial affairs of JIL.
25.8.Therefore, the answer to question (v) as referred in paragraph 20 is that
the impugned transactions are not of excepted transfers in terms of sub-
section (3) of Section 43 of the Code.
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The concern expressed by lenders of JAL is legally untenable
26. The argument of lenders, that holding the transactions in question as
preferential would result in impacting large number of transactions undertaken
by the bankers/financial institutions, of financing in the ordinary course of their
business; and the consequences may be devastating and irreversible on the
economy, has only been noted to be rejected.
26.1.It needs hardly any emphasis that in the ordinary course of their
business, when the bankers or financial institutions examine any proposal for
loan or advance or akin facility, they are supposed to, and they indeed, take up
the exercise commonly termed as ‘due diligence’
44
so as to study the viability
of the proposed enterprise as also to ensure, inter alia, that the security
against such loan/advance/facility is genuine and adequate; and would be
available for enforcement at any point of time. Given the nature of transaction,
the lenders must prefer a clean security to justify the transaction as being in
the ordinary course of their business. In the same exercise, in the ordinary
course of their business, if they are at all entering into a transaction whereby a
third party security, including that of a subsidiary company, is to be taken as
collateral, they are obliged to undertake further due diligence so as to ensure
44 As regards the present context, the term ‘due diligence’ is explained in P. Ramanatha Aiyar’s
Advanced Law Lexicon (5
th
Ed.-Vol 2, p.1654) in the following:
“The detailed review of the borrower/issuer’s overall position, which is supposed to
be undertaken by the lead manager of a new financing in conjunction with the preparation
of legal documentation.
Analysis of the financial status and prospects of company before it receives a
major investment of capital. It is usually carried out by an independent accountant.”
99
that such third party security is a prudent and viable one and is not likely to be
hit by any law. In that sequence, they remain under obligation to assure
themselves that such third party whose security is being taken, is not already
indebted or in red and is not likely to fail in dealing with its own indebtedness.
In the context of IBC, such requirement is moreover imperative on a bare look
at the provisions contained in Part II thereof. Interesting it is to notice on the
facts of the present case that in fact, several of the respondent lenders are
shown to be the direct creditors of JIL too, to the extent of the advances made
to JIL. They and the co-respondents cannot plead ignorance about the actual
state of affairs and financial position of JIL. Despite such knowledge, if they
chose to take the business risk of accepting security from JIL and that too, for
securing the loans/advances/facilities made over to JAL, who was a directly
related party of JIL for being its holding company, they themselves remain
responsible for present legal consequences.
Summation: The transactions in question are hit by Section 43 IBC
27.For what has been discussed hereinabove, we are clearly of the view
that the transactions in question are hit by Section 43 of the Code and the
Adjudicating Authority, having rightly held so, had been justified in issuing
necessary directions in terms of Section 44 of the Code in relation to the
transactions concerning Property Nos. 1 to 6. NCLAT, in our view, had not
been right in interfering with the well-considered and justified order passed by
NCLT in this regard.
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Search and commandeering of preference at a relevant time
28.Although we have analysed the transactions in question on the anvil of
Section 43 with reference to the submissions made and the facts of the
present case but, before moving on to other aspects, we deem it appropriate
to point out the manner in which the provisions concerning preference at a
relevant time are expected to be applied, particularly by the resolution
professional, in a given case. It could be readily recapitulated that as per the
charging parts of Section 43 i.e., sub-sections (4) and (2) thereof, a corporate
debtor shall be deemed to have given preference at a relevant time if the twin
requirements of clauses (a) and (b) of sub-section (2) coupled with the
applicable requirements of either clause (a) or clause (b) of sub-section (4), as
the case may be, are satisfied. However, even if the requirements of sub-
sections (4) and (2) are satisfied, a transaction may not be regarded as an
offending preference if it falls in either or both of the exceptions provided by
sub-section (3) of Section 43.
28.1.Looking to the legal fictions created by Section 43 and looking to the
duties and responsibilities per Section 25, in our view, for the purpose of
application of Section 43 of the Code in any insolvency resolution process,
what a resolution professional is ordinarily required to do could be illustrated
as follows:
1. In the first place, the resolution professional shall have to take
two major but distinct steps. One shall be of sifting through the entire
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cargo of transactions relating to the property or an interest thereof of the
corporate debtor backwards from the date of commencement of
insolvency and up to the preceding two years. The other distinct step
shall be of identifying the persons involved in such transactions and of
putting them in two categories; one being of the persons who fall within
the definition of ‘related party’ in terms of Section 5(24) of the Code and
another of the remaining persons.
2.In the next step, the resolution professional ought to identify as to
in which of the said transactions of preceding two years, the beneficiary
is a related party of the corporate debtor and in which the beneficiary is
not a related party. It would lead to bifurcation of the identified
transactions into two sub-sets: One concerning related party/parties and
other concerning unrelated party/parties with each sub-set requiring
different analysis. The sub-set concerning unrelated party/parties shall
further be trimmed to include only the transactions of preceding one
year from the date of commencement of insolvency.
3.Having thus obtained two sub-sets of transactions to scan, the
steps thereafter would be to examine every transaction in each of these
sub-sets to find: (i) as to whether the transaction is of transfer of
property or an interest thereof of the corporate debtor; and (ii) as to
whether the beneficiary involved in the transaction stands in the capacity
of creditor or surety or guarantor qua the corporate debtor. These steps
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shall lead to shortlisting of such transactions which carry the potential of
being preferential.
4.In the next step, the said shortlisted transactions would be
scrutinised to find if the transfer in question is made for or on account of
an antecedent financial debt or operational debt or other liability owed
by the corporate debtor. The transactions which are so found would be
answering to clause (a) of sub-section (2) of Section 43.
5.In yet further step, such of the scanned and scrutinised
transactions that are found covered by clause (a) of sub-section (2) of
Section 43 shall have to be examined on another touchstone as to
whether the transfer in question has the effect of putting such creditor or
surety or guarantor in a beneficial position than it would have been in
the event of distribution of assets per Section 53 of the Code. If answer
to this question is in the affirmative, the transaction under examination
shall be deemed to be of preference within a relevant time, provided it
does not fall within the exclusion provided by sub-section (3) of Section
43.
6.In the next and equally necessary step, the transaction which
otherwise is to be of deemed preference, will have to pass through
another filtration to find if it does not answer to either of the clauses (a)
and (b) of sub-section (3) of Section 43.
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7.After the resolution professional has carried out the aforesaid
volumetric as also gravimetric analysis of the transactions on the
defined coordinates, he shall be required to apply to the Adjudicating
Authority for necessary order/s in relation to the transaction/s that had
passed through all the positive tests of sub-section (4) and sub-section
(2) as also negative test of sub-section (3).
28.2.On a motion made by the resolution professional after and in terms of
the exercise aforesaid, the Adjudicating Authority, in its turn, shall have to
examine if the referred transaction answers to all the descriptions noted above
and shall then decide as to what order is required to be passed, for avoidance
of the impugned transaction or otherwise.
28.3.In our view, looking to the legal fictions created by Section 43 and
looking to the duties and responsibilities of the resolution professional and the
Adjudicating Authority, ordinarily an adherence to the process illustrated
hereinabove shall ensure reasonable clarity and less confusion; and would aid
in optimum utilization of time in any insolvency resolution process.
Other aspects of the application made by IRP – allegations of
transactions being undervalued and fraudulent
29.Having found that the transactions in question cannot be countenanced,
for being of preference during a relevant time to a related party; and having
approved the order passed by NCLT in that regard, we do not consider it
necessary to deal with the other length of arguments advanced by the learned
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counsel for parties on the questions as to whether the transactions are
undervalued and/or fraudulent too. In the totality of circumstances, we would
prefer leaving the said questions at that only, while also leaving all the related
questions of law open; to be examined in an appropriate case.
29.1.However, we are impelled to make one comment as regards the
application made by IRP. It is noticed that in the present case, the IRP moved
one composite application purportedly under Sections 43, 45 and 66 of the
Code while alleging that the transactions in question were preferential as also
undervalued and fraudulent. In our view, in the scheme of the Code, the
parameters and the requisite enquiries as also the consequences in relation to
these aspects are different and such difference is explicit in the related
provisions. As noticed, the question of intent is not involved in Section 43 and
by virtue of legal fiction, upon existence of the given ingredients, a transaction
is deemed to be of giving preference at a relevant time. However, whether a
transaction is undervalued requires a different enquiry as per Sections 45 and
46 of the Code and significantly, such application can also be made by the
creditor under Section 47 of the Code. The consequences of undervaluation
are contained in Sections 48 and 49. Per Section 49, if the undervalued
transaction is referable to sub-section (2) of Section 45, the Adjudicating
Authority may look at the intent to examine if such undervaluation was to
defraud the creditors. On the other hand, the provisions of Section 66 related
to fraudulent trading and wrongful trading entail the liabilities on the persons
105
responsible therefor. We are not elaborating on all these aspects for being not
necessary as the transactions in question are already held preferential and
hence, the order for their avoidance is required to be approved; but it appears
expedient to observe that the arena and scope of the requisite enquiries, to
find if the transaction is undervalued or is intended to defraud the creditors or
had been of wrongful/fraudulent trading are entirely different. Specific material
facts are required to be pleaded if a transaction is sought to be brought under
the mischief sought to be remedied by Sections 45/46/47 or Section 66 of the
Code. As noticed, the scope of enquiry in relation to the questions as to
whether a transaction is of giving preference at a relevant time, is entirely
different. Hence, it would be expected of any resolution professional to keep
such requirements in view while making a motion to the Adjudicating Authority.
29.2.In the present case, it is noticed that NCLT in its detailed and considered
order essentially dealt with the features of the transaction in question being
preferential at a relevant time but recorded combined findings on all these
three aspects that the impugned transactions were preferential, undervalued
and fraudulent. Appropriate it would have been to deal with all these aspects
separately and distinctively.
29.3.We are conscious of the fact that IBC is comparatively a new legislation
and various aspects expected therein are in the progression of taking proper
shape, particularly in the adjudicatory processes envisaged. Having said so,
we would leave this aspect at that only, while expecting all the concerned to be
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more attentive to the scheme, object and requirements of the provisions
contained in the Code.
SECOND ISSUE: WHETHER LENDERS OF JAL COULD BE
CATEGORISED AS FINANCIAL CREDITORS OF JIL
Preliminary and background
30.The discussion and summation in the foregoing paragraphs and
conclusion on the first issue itself would have been the end of the matter
because the transactions in question stand disapproved as being preferential.
However, there remains another significant issue to be adjudicated herein,
which, though not adverted to by NCLAT, is indeed involved in these matters.
30.1. The issue is as to whether the lenders of JAL could be categorised as
financial creditors of JIL for the purpose of IBC?
31.The issue aforesaid was raised before NCLT by two of the respondent
banks namely, ICICI Bank Limited and Axis Bank Limited by way of separate
applications under Section 60(5) of the Code, seeking to question the decision
of IRP rejecting their claims to be recognized as financial creditors of the
corporate debtor JIL on account of the securities provided by JIL for the
facilities granted to JAL. The NCLT rejected the applications so filed, by way of
its orders dated 09.05.2018 and 15.05.2018 respectively, while concluding that
on the strength of the mortgages created by the corporate debtor JIL, as
collateral security of the debts of its holding company JAL, the applicants
cannot be treated as financial creditors of the corporate debtor JIL.
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31.1.The aforesaid orders dated 09.05.2018 and 15.05.2018 were
questioned before NCLAT by the said lenders of JAL in Comp. App (AT) (Ins)
No. 353 of 2018 and Comp. App (AT) (Ins) No. 301 of 2018 respectively.
These appeals formed part of the bunch of appeals decided by NCLAT by way
of the impugned common order dated 01.08.2019 and, as per the final result
recorded therein, these two appeals also stand allowed. However, fact of the
matter remains that nothing has been discussed by NCLAT in the impugned
order dated 01.08.2019 as regards the subject-matter of these two appeals
i.e., as to whether the said lenders of JAL could be categorised as financial
creditors of JIL or not; and the entire discussion in the impugned order and the
final conclusion therein had only been in relation to the order dated 16.05.2018
that was passed by NCLT on the application for avoidance filed by IRP.
31.2.The appellant of Civil Appeal D. No. 32881 of 2019, IIFCL, apart from
raising other contentions, has also questioned this aspect of the order
impugned that the aforesaid two appeals, involving the issue as to whether the
mortgagees of the corporate debtor could be taken as financial creditors, have
been allowed by NCLAT without recording any findings and without any
discussion in that regard.
31.3.Though, ordinarily, such omission in the impugned order dated
01.08.2019 might have resulted in the matter being remitted to the Appellate
Tribunal for appropriate consideration and finding but, as aforesaid, in the
entire process, adherence to the time limit is also of significance; and in view
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of the fact that learned counsel for the respective parties have advanced
elaborate submissions on the merits of the issue as to whether such lenders of
JAL could be treated as financial creditors of the corporate debtor JIL and
have invited the decision of this Court, we deem it just, proper and expedient
to finally decide the relevant questions in this regard.
31.4.We may, of course, reiterate that in view of the conclusion that we have
reached in relation to the principal issue, the transactions in question are
denuded of their value and worth, per the force of the order by NCLT under
Section 44 of the Code, which has been approved by us. To be more specific,
the security interests created by the corporate debtor JIL over the properties in
question stand discharged in whole. Therefore, the respondent-lenders cannot
claim any status as creditors of the corporate debtor JIL and there could arise
no question of their making any claim to be treated as financial creditors as
such. However, for its relevance, we deem it appropriate to determine the
issue as to whether the lenders of JAL, because of creation of the mortgages
in question, could be treated as financial creditors of JIL, independent of the
finding that the transactions in question are hit by Section 43 of the Code.
32.Before proceeding further, apposite it would be to take note of the
reasons assigned by NCLT in its impugned orders for rejecting the claim of two
of the lender banks to be treated as financial creditors of JIL.
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Reasoning and Findings of NCLT
33.The Adjudicating Authority, NCLT, in its order dated 09.05.2018 as
passed on the application moved by ICICI Bank Limited, with reference to the
nature of transaction in question, whereby JIL had extended collateral security
towards the facility extended to its holding company JAL as also with reference
to the definition and connotations of the expressions ‘financial debt’ and
‘financial creditor’ as occurring in IBC, essentially proceeded to find that in
such a transaction, as regards the corporate debtor JIL, no consideration for
time value for money was involved; and hence, the transaction in question did
not qualify as ‘financial debt’ qua the corporate debtor JIL. The NCLT, inter
alia, observed as under:-
“9. In the present case undisputedly corporate debtor has mortgaged
its property for creating collateral security for the debt of its holding
company JAL. The Corporate debtor is not a borrower, it has created
a mortgage in favour of financial institutions for creating collateral
security for the money borrowed by its holding company JAL. In the
said transaction time value of money is not involved. The corporate
debtor’s liability is not regarding the debt owed by its holding
company JAL. In case of default in making payment by the principal
borrower, for which security interest has been created by the
corporate debtor by mortgaging its property in favour of Applicant
bank, the debt amount can be realized from the sale of the
mortgaged property but not from the corporate debtor, i.e. Jaypee
Infratech Ltd.
*** *** ***
9.2 In this case, the applicant has not disbursed the debt along with
interest against the consideration for the time value of money. It is
also not the case of the applicant that the corporate debtor has
borrowed money against payment of interest from the applicant. It is
also not the case that the corporate debtor has raised any amount
from the applicant under any credit facility. It is not the case of the
110
applicant that there is any liability towards the corporate debtor in
respect of any lease or higher purchase contract. It is further not the
case of an applicant that any receivables been sold or discounted. It
is further not the case of the applicant that any amount has been
raised for the corporate debtor under any other transaction having
the commercial effect of borrowing to the corporate debtor. It is not
the case of the applicant that any derivative transaction has been
entered with the corporate debtor. It is also not the case of the
applicant that any counter indemnity obligation in respect of a
guarantee, indemnity, bond, documentary, letter of credit or any
other instrument issued by a bank or a financial institution for the
corporate debtor. Further, no amount of any liability in respect of any
of the guarantee or indemnity for any of the items referred to above
has been issued by the corporate debtor.”
33.1.The NCLT also distinguished the decision of this Court in the case of
Rajkumari Kaushalya Devi v. Bawa Pritam Singh & Anr.: AIR 1960 SC
1030, as relied upon by the learned counsel for the applicant, while pointing
out the distinct context of the said decision and while observing that the
connotations of the expressions ‘debt’, ‘financial debt’, ‘financial creditor’ and
‘creditor’ in the present context would be limited to the definitions given in the
Code. The NCLT further distinguished the decision of Gujarat High Court in the
case of State Bank of India v. Smt. Kusum Vallabhdas Thakkar: 1991 SCC
Online Guj 14, while again pointing out that in the present case, the corporate
debtor has created a mortgage of its property in favour of third party without
any consideration for time value of money.
33.2.Yet further, the NCLT rejected the contentions that the transaction in
question could be termed as either ‘guarantee’ or ‘indemnity’ while observing,
inter alia, as under:-
111
“13.The contention of the applicant that mortgage created by the
corporate debtor can be termed as either a guarantee or
indemnity is not tenable. In terms of the mortgage deeds the
corporate debtor has created a mortgage over its immovable
properties, which is either money borrowed against payment of
interest nor indemnity or a guarantee as claimed by the applicant
and therefore, the same does not fall within the definition of the
financial debt in terms of Sec. 5 (8) of IBC. It is stated that the
corporate debtor has neither issued any guarantee nor has
provided an indemnity to the applicant in respect of the financial
assistance granted to JAL.
14.The Resolution Professional further submitted that the
mortgage deed shows that the corporate debtor has only agreed
to create a mortgage in favour of the applicant towards the
financial assistance granted to its holding company, i.e. JAL. On
perusal of mortgage it is clear that the corporate debtor has
neither given any guarantee to repay or any indemnity qua the
repayment of the loans granted by the applicant to JAL. The
definition of Mortgage Debt as per the mortgage deed dated 7
th
March 2017 is as under : -
“Mortgage debt shall mean the principal amount of the
facility, all interest therein additional interest, default interest,
liquidated damages, fees, costs, charges, expenses, any
other amounts due and payable to secured parties under the
transaction documents, premia on prepayment, costs,
charges, and expenses and other monies whatsoever
stipulated in or payable together with other debts and
liabilities of JAL to lender under the transaction document
and/or these presents.”
It is important to point out that sec. 124 of the Indian Contract Act
defines a “Contract of Indemnity” as being a contract by which one
party promises to save the other from loss caused to him by the
conduct of the promisor himself or by the conduct of any other
person. In the instant case, as per the Mortgage deed the
repayment obligation of the loan granted to JAL by the applicant is
upon JAL as stated above and therefore, no contract of indemnity
as claimed by the applicant has been entered even by conduct of
the corporate debtor, and therefore, the contention of the applicant
that the applicant is a financial creditor of the corporate debtor is
completely untenable in law.”
112
33.3.While observing that in the scheme of the Code and CIRP Regulations
thereunder, the claims are invited from the creditors of the corporate debtor
i.e., financial creditors, operational creditors and other creditors, and not from
any person or creditors of the holding company of the corporate debtor; and
while further observing that the resolution professional had righty observed
that the mortgages in questions were not like guarantee or indemnity, NCLT
observed that the basic ingredient of financial debt i.e., ‘debt alongwith interest
disbursed against time value of money’ was lacking in the impugned
transactions. NCLT also referred to the interpretation of the expression
‘financial creditors’ by NCLAT in the case of Nikhil Mehta and Sons v. AMR
Infrastructure Ltd. Company: Appeal (AT) (Insolvency) No. 07 of 2017 and
endorsed the decision of IRP while holding that,-
“15. ….On the above basis, we are of the view that The
Resolution Professional has correctly rejected the claim of the
applicant on the ground that the Applicant is not a financial
creditor of the corporate debtor concerning the Mortgages and the
Mortgaged Debt. The resolution professional has rightly observed
that guarantee and indemnity are distinct documents under the
relevant laws and the mortgages executed by the corporate debtor
are not like guarantee and indemnity. The basic ingredient of the
financial debt as defined under the Code is that debt along with
interest disbursed against time value of money lacks in the
impugned transaction….”
33.4.Accordingly, NCLT rejected the application of ICICI Bank Limited by way
of its order dated 09.05.2018, while concluding as under:-
“…Therefore, by the mortgage created by the corporate debtor, as
collateral security by the debt of its holding company, i.e.
Jaiprakash Associates Ltd. (“JAL”) in favour of the Applicant i.e.
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ICICI Bank, the applicant cannot be treated as Financial Creditor
of the Corporate Debtor. Therefore in our view, Resolution
Professional has rightly rejected the claim of the applicant, which
was filed by the Applicant in the capacity of Financial Creditors of
the corporate debtor, i.e. Jaypee Infratech Ltd. (“JIL”)”.
33.4.1.Thereafter, the other application filed by Axis Bank Limited was
rejected by NCLT on 15.05.2018, while following the earlier order dated
09.05.2018.
34.As noticed, the aforesaid orders dated 09.05.2018 and 15.05.2018
were questioned in two appeals before NCLAT by the said lenders of JAL; and
the said appeals stand allowed in the impugned order dated 01.08.2019
without any discussion as regards the issue involved therein. We have heard
learned counsel for the parties at length in relation to this issue too, and, in the
circumstances of the case, as noticed, we had indicated prima facie view in
the order dated 10.12.2019
45
, that such lenders of JAL cannot be categorised
as financial creditors of JIL and had stayed the operation of impugned order to
that extent.
Rival submissions
35.Having noticed the relevant background, we may now take note of the
contentions of learned counsel for the parties in regard to the issue under
consideration.
45 Reproduced in paragraph 7 hereinbefore.
114
Submissions on behalf of the appellant
36.It has essentially been argued on behalf of the appellant IIFCL that as
per sub-section (7) of Section 5 of the Code, only such creditor could be the
‘financial creditor’ of the corporate debtor to whom a ‘financial debt’ is owed by
the corporate debtor; and, as per sub-section (8) of Section 5 of the Code, the
key requirement of a financial debt is ‘disbursal against the consideration for
the time value of money’, which includes the events or modes of disbursement
as enumerated in sub-clauses (a) to (i) of Section 5(8). It is submitted that in
the present case, the lenders of JAL having not disbursed any debt against the
consideration for the time value of money to the corporate debtor JIL, the
corporate debtor does not owe any ‘financial debt’ to such lenders; and the
transactions in question do not fall within the brackets of ‘financial debt’ only
for the reason that the corporate debtor JIL created mortgages as collateral
security in favour of lender banks for the money borrowed by JAL. Concisely
put, the submission is that in the said mortgage transactions, disbursal against
the consideration for the time value of money qua the corporate debtor JIL
being not involved, the lenders of JAL are not the ‘financial creditors’ of JIL and
cannot be included in the Committee of Creditors
46
, as to be constituted per
Section 21 of the Code.
36.1.It is further submitted that the said lenders of JAL have no right to
demand the mortgage money from the corporate debtor nor is the corporate
46 ‘CoC’ for short
115
debtor JIL under any liability to pay the same; and mere holding of security
interest, which too had not been extended for direct disbursement of any credit
to JIL, cannot make the JAL lenders as financial creditors of JIL within the
meaning of IBC. Learned counsel for the appellant has referred to the
judgment and order dated 22.12.2017 by the NCLAT in Dr. B.V.S. Lakshmi v.
Geometrix Laser Solutions (P) Ltd.: Company Appeal (AT) (Insolvency)
No. 38 of 2017, to substantiate this submission.
36.2.It is contended on behalf of the appellant that though the definition of
‘financial debt’ extends to include various types of transactions, yet it does not
include a mortgage, as could be gathered from a plain and simple reading of
the said provision. The counsel for the appellant has further relied on the
judgment of this Court in Swiss Ribbons (supra), wherein the concept of
‘financial creditor’ has been explicated to mean and include a person who has
direct engagement in the functioning of corporate debtor right from the
beginning, while assessing the viability of corporate debtor; and who would
also engage in restructuring of debts and reorganising the corporate business
in case of financial stress. With reference to the case at hand, it is submitted
that mere holding of security interest, not meant for direct disbursement of any
credit to corporate debtor JIL, cannot convert the lenders of JAL into the
financial creditors of JIL.
36.2.1.It is also contended that the respondents, the lenders of JAL to whom
mortgages were extended by the corporate debtor JIL, could at best be
116
construed as plain creditors, who are entitled to file Form F and to specify their
security in column 8 thereof; and in any case, they cannot become financial
creditors of JIL.
36.2.2.It is further contended that a secured creditor under the Code can be a
financial creditor under two circumstances i.e., (i) when corporate debtor
directly avails a debt from the creditor and such a debt is a secured debt; and
(ii) if corporate debtor furnishes a guarantee to any person. Learned counsel
for the appellant submits that a mortgagee, who has not disbursed any debt to
the corporate debtor, may be a secured creditor because of the corporate
debtor creating a security to secure the payment of a third party but cannot be
a financial creditor of the corporate debtor within the meaning of Section 5(8)
of the Code.
36.3.Elaborating on the submissions relating to the nature of transactions,
learned counsel for the appellant has strenuously argued that ‘mortgage’ is not
included within the framework of Section 5(8) of the Code and its sub-clauses
(a) to (i); and that ‘financial debt’ is limited only to the transactions enumerated
thereunder and its coverage cannot be enlarged while interpreting the
provision. It is also argued that ‘mortgage’ cannot be deemed to mean
‘guarantee’, for a mortgagor has no intentions to undertake to discharge the
liability of a third person in case of his default in repayment of debts. In other
words, only where the debtor and the mortgagor are the same person that the
mortgagor would be liable to pay his debts and else, the mortgage itself does
117
not create a pecuniary liability. Moreover, in the present case, when there is a
tri-partite contract wherein, the mortgagor and debtor are different, the
impugned transactions do not satisfy the ingredients of Section 126 of the
Contract Act, as JIL has not undertaken specifically to discharge the liability of
JAL nor has entered into a ‘contract of guarantee’ with the lenders of JAL nor
has provided any indemnity; and therefore, the corporate debtor JIL is not
bound by any liabilities and obligations incurred by JAL. To support the
contention that liability always flows from debt and not from the security
created under the mortgage, learned counsel for the appellant has also relied
on several decisions including that in Ramchand Sur v. Ishwar Chandra Giri:
61 Ind Cases 539.
36.4.It is submitted that a general reference to the transaction documents
would not be sufficient to fasten liability for JIL to pay any outstanding debt of
JAL because any payment obligation has to be unequivocal and ought to be of
specific undertaking to discharge such obligations; and that general words of
incorporation or general covenant in some mortgage deeds cannot bind JIL to
all the terms and conditions of the documents, particularly any liability to incur
JAL’s indebtedness by fastening payment obligations. It is further submitted
that when the intention of parties is ascertained with reference to the terms of
documents and all the surrounding factors, it cannot be inferred that JIL
undertook the liability to discharge the indebtedness of JAL when it was itself
reeling under financial stress, was declared NPA and had surmounting
118
liabilities towards home buyers and its own lenders. With reference to the
financial statements of JIL, it is pointed out that therein, it was specifically
disclosed that the mortgages had been provided as a security for the financial
assistance availed by JAL but such mortgages were not declared either as
contingent or as direct liability. It is also submitted that the common loan
agreement between JIL and its lenders, including the appellant, contained
negative covenants prohibiting JIL from creating, assuming or incurring any
additional indebtedness or from encumbering any property or creating any
security on the assets of JIL. The sum and substance of such submissions had
been that the corporate debtor JIL could have neither incurred a liability to
discharge the indebtedness of JAL nor it had done so under the mortgages in
question.
36.5.As regards the decision of this Court in Committee of Creditors of
Essar Steel India Limited through Authorised Signatory v. Satish Kumar
Gupta : 2019 SCC OnLine SC 1478
47
, as relied upon by the respondents,
learned counsel for the appellant has submitted that the generalised assertion
on the part of the respondents, that per the force of the said decision, a
secured creditor ipso facto becomes financial creditor, is not a correct
appreciation of the ratio thereof. It is submitted that in the scheme of the Code,
a secured creditor could also be a financial creditor under two circumstances:
First, when the corporate debtor directly avails a debt from the creditor and
47 Hereinafter also referred to as the case of ‘Essar Steel’.
119
such debt is secured by a security interest like in the form of a charge or
mortgage or hypothecation; and such a creditor, the secured one, is regarded
as financial creditor because of direct disbursement of debt to the corporate
debtor; and secondly, when the corporate debtor furnishes guarantee to any
person, such person would also become a financial creditor and a secured
creditor by virtue of sub-clause (i) of Section 5(8) of the Code, of course, such
guarantee may even be to secure the debt obligation of a third party.
However, according to the counsel for the appellant, when the corporate
debtor creates mortgage to secure payment obligation of a third party, without
disbursement of any debt to itself (the corporate debtor), the mortgagee, even
if becoming a secured creditor because of creation of mortgage, could only be
described as ‘indirect secured creditor’ and cannot be treated as a ‘direct
secured creditor’ so as to become a ‘financial creditor’ because, the mortgage
transaction is not envisaged to be a ‘financial debt’ in Section 5(8) with its sub-
clauses (a) to (i).
36.5.1.It is submitted that Essar Steel judgment envisages the position and
priorities of secured creditors, mainly in the context of a creditor who has
disbursed direct debt to the corporate debtor and has secured its debt by a
security interest, who should have priority over unsecured creditors of the
corporate debtor. However, the said decision, according to the learned
counsel, cannot be read to the effect that even the indirect secured creditor be
also necessarily construed as financial creditor. It is submitted that the crux of
120
the said decision is that creditors not similarly situated cannot be at par; that
the arrangements of the corporate debtor with its creditors must be taken into
consideration; and that the aim of equitable treatment is based on the notion
that creditors with similar legal rights should be treated evenly while receiving
distribution in accordance with their relative ranking and interest. It is
submitted that Essar Steel cannot be read as laying down the law that even
the lenders of third party, who hold mortgages from the corporate debtor, be
also treated as such secured creditors who would fall within the sect of
‘financial creditors’.
36.6.Learned counsel for the appellant would further submit that existence of
a security interest is not relevant while construing whether a creditor is
financial creditor or not because, in the composition of CoC, even a non-
secured creditor could also be a financial creditor, if the ingredients of Section
5(8) of the Code are satisfied. It is also argued that the financial facilities
availed by JAL from the respondents were not utilized for any business
operation of JIL and hence, the respondents cannot be construed as financial
creditors of JIL.
Submissions on behalf of respondents
37.Learned counsel for the contesting respondents have made elaborate
submissions in support of the counter-assertion that on account of security
provided by the corporate debtor JIL, the respective lenders have become
financial creditors of JIL for the purpose of proceedings under the Code. We
121
may briefly summarise the principal facets of the contentions urged on behalf
of the main contesting respondents in this regard as infra.
Axis Bank
37.1.It has been strenuously argued on behalf of this respondent that the
nature and character of a ‘mortgage’ is such that it secures a debt; and in the
present case, the mortgage in question, as made by JIL, had been to secure
the debt obligations of its holding company JAL. With reference to Section 58
of the Transfer of Property Act and the decision of this Court in Prithvi Nath
Singh & Ors. v. Suraj Ahir & Ors. : (1963) 3 SCR 302 as also the decision of
Mysore High Court in Dassappa & Ors v. Jogaiah & Ors : (1964) ILR 545, it
is submitted that the purpose of ‘mortgage’ is to secure a debt; and with
reference to the decision in Manik Chand Raut v. Baldeo Chaudhary & Ors:
(1949) SCCOnline Pat 64, it is also contended that mortgage, by its very
nature, presupposes existence of a debt and the transaction by which a debt is
extinguished is not a mortgage but a sale. Further, with reference to the
aforementioned decision of this Court in case of Rajkumari Kaushalya Devi
v. Bawa Pritam Singh & Anr: AIR 1960 SC 1030, it is contended that a
mortgage debt creates pecuniary liability upon the mortgagor; and that a
mortgagor who transfers an interest in immovable property so as to secure a
debt, incurs a mortgage debt. With reference to the decision of Delhi High
Court in the case of State Bank of India v. Samneel Engineering Co. & Ors:
1995 (35) DRJ 485, it is further submitted that a mortgage is both a promise by
122
a debtor to repay the loan as well as a real property right; of course, the right
being intended to secure the due payment of the debt; and a suit on a
mortgage is essentially a suit for recovery of a debt.
37.1.1.With reference to principles aforesaid, it is contended that a mortgage
debt is a ‘debt’ within the meaning of Section 3(11) of the Code; that a debt
can be classified to be a debt due from ‘any person’ and not necessarily
restricted to the borrower alone. The aforementioned decision of Gujarat High
Court in State Bank of India v. Smt. Kusum Vallabhdas Thakkar: 1991
SCCOnline GUJ 14 has again been referred to submit that Indian Law
recognizes that a person, other than the borrower, can also execute a
mortgage to secure the debt of the borrower. In this context, learned counsel
for the respondent has also relied upon the provisions contained in Section
126 of the Contract Act, to contend that JIL stands in the position of a
guarantor for the debts owed by JAL. The learned counsel has also referred to
an order dated 13.03.2019 in M.A. No. 1584/2019 in CP No. 402 of 2018 as
passed by NCLT (Mumbai Bench) in the case of SREI Infrastructure Finance
Limited v. Sterling International Enterprises Ltd., wherein it is held that a
third party mortgagor, who mortgages the property to secure the financial
obligation of another party, stands in the position of a guarantor; and the
mortgagee is a financial creditor of the third party mortgagor. In the case at
hand, it is submitted, the corporate debtor JIL stands in the position of a
guarantor with respect to the security provided to this respondent and hence,
123
the impugned mortgage transactions are covered within the meaning of
Section 5(8)(i) of the Code.
37.1.2.It is also submitted that looking to the nature of transaction in question,
the question whether JAL has defaulted on repayment and consequently, the
security is to be invoked is irrelevant for the purposes of the issue at hand; and
whether JAL committed default or not is not decisive of the question as to
whether the mortgage debt in question is financial debt or not.
37.1.3.It is further submitted that in the present case, the mortgage
transactions were executed to secure the payment of debts/liabilities of JAL;
and that such creation of mortgage undoubtedly is a ‘security interest’ as
defined in Section 3(31) of the Code inasmuch as, a security interest includes
any creation of right/title/interest/claim in property for the purpose of securing
the payment or performance of an obligation; and also includes a mortgage.
Hence it is contended that the respondent bank comes within the ambit of
‘secured creditor’ per Section 3(30) of the Code.
37.1.4.It is emphasised by learned counsel for this respondent that a
mortgage debt constitutes a ‘financial debt’ within the meaning of Section 5(8)
of the Code even if no amount is directly disbursed to the corporate debtor.
While relying on the decision of this Court in Pioneer Urban Land and
Infrastructure Ltd. & Anr. v. Union of India & Ors.: (2019) 8 SCC 416
48
, it is
contended that the definition of ‘financial debt’ under Section 5(8) of Code
48 Hereinafter also referred to as the case of ‘Pioneer Urban’
124
has been given an extended meaning so as to include the situations which
may not directly involve disbursal against the consideration for time value
money.
37.1.5.Further, with reference to the aforementioned UNCITRAL Legislative
Guide on Insolvency Law and the decisions of this Court in the cases of Essar
Steel and Swiss Ribbons, it is submitted that a holistic interpretation of the
Code would support the position that the respondent, being a secured creditor
and a financial creditor, should be included in CoC so as to protect its security
interest.
37.2.The submissions and contentions made on behalf of this respondent
largely cover the stand of other respondents too. Hence, we may only notice,
in brief, the other or additional part of major submissions on behalf of other
respondents, while avoiding repetition.
Standard Chartered Bank
37.3.It is submitted on behalf of this respondent that the terms envisaged in
the mortgage deed dated 24.05.2016 make it abundantly clear that the
corporate debtor JIL had unequivocally promised to pay to this respondent the
debts/liabilities owed by JAL in accordance with the terms and conditions of
the secured financing documents executed between this respondent and
JAL
49
. Hence, it is contended that though the claim of this respondent is limited
49 Clause B & B(a) of the Mortgage Deed produced as Annexure-1 at Pg. 8-43
125
to the extent of the value of the properties mentioned in the Schedule to the
Mortgage Deed but, to that extent, it remains a financial creditor of JIL.
37.3.1.As regards similar arguments with respect to Section 58 of the Transfer
of Property Act, that a mortgage presupposes the subsistence of a debt and
hence it is a secured debt, apart from above referred decisions, learned
counsel has also referred to the decision in Pomal Khanji Govindji & Ors. v.
Brajlal Karsandas Purohit & Ors: (1989) 1 SCC 458.
37.3.2.It is contended that when the objective of the Code is to revive the
corporate debtor, the resolution plan ought to contain all claims against the
corporate debtor, whether matured or not, so that if the liability again creeps in,
the Company may be prevented from being dragged into insolvency or
liquidation proceedings. It is further submitted that this respondent, who is
holding public money, ought to be a part of CoC; and its absence in CoC
would be defeating the very object of the Code because the resolution plan
may provide for various measures which might take away the security interest
created in favor of this respondent; and without its participation, the entire
process would be prejudicial to the interest of this respondent. It is submitted
that as per the ratio in K. Sashidhar v. Indian Overseas Bank and Ors. :
2019 SCC OnLine SC 257 read with the decision in the case of Essar Steel,
once a resolution plan is approved by the wisdom of the CoC, the same
cannot be challenged and looking to the scheme of the Code, presence of the
126
mortgagees like this respondent in the CoC of JIL is necessary and is rather
unavoidable.
ICICI Bank
37.4.On behalf of this respondent, it is maintained that in view of Section 5(8)
(i) read with Section 5(8)(a) of the Code, the creation of impugned mortgage
had resulted in creation of a ‘financial debt’ as defined under the Code, for the
transaction being akin to that of a ‘guarantee’ as defined under Section 126 of
the Contract Act. Again, with reference to the decision in Smt. Kusum (supra),
it is submitted that even a third party mortgage leads to creation of an implied
guarantee with an obligation to pay the mortgage debt. In other words, since
the definition of ‘financial debt’ is not exhaustive, any transaction which is akin
to creation of a guarantee would come under the purview of the definition of
‘financial debt’ and as such, the mortgage provided by the corporate debtor
JIL, being akin to the guarantee, would be squarely within the definition of
‘financial debt’. It is further submitted that in the given scenario, this
respondent takes on the role of a ‘financial creditor’ of the corporate debtor JIL
within the meaning of Section 5(8)(i) of the Code and hence, ought to be
admitted as a member of the CoC.
37.4.1.It is submitted on behalf of this respondent that on a holistic reading of
the mortgage deeds, it is clear that ‘exclusive mortgages’ were executed in
favour of this respondent with express clauses whereby, the corporate debtor
JIL had undertaken to either discharge the debt or to ensure repayment of
127
facilities extended to JAL and in the event of default, this respondent shall
have the right to sell the mortgaged properties. Such stipulations, it is
contended, clearly put the respondent in the category of ‘financial creditors’.
37.4.2.With reference to the duties of IRP as laid out in the Code, and with
analysis of the definition of ‘claim’ as found in Section 3(6) of the Code, it is
submitted that the definition of ‘claim’ is wide enough to include all
stakeholders of the corporate debtor, even if a claim had not matured on the
date of insolvency commencement. The Report of Banking Law Reform
Committee has also been referred in this regard.
37.4.3.It is further submitted that Regulations 12, 13 and 14 of the Insolvency
and Bankruptcy Board of India (Insolvency Resolution Process for Corporate
Persons) Regulations, 2016 require the IRP to admit all claims, including
contingent claims, as on the insolvency commencement date; that as per
Section 29 of the Code, the IRP ought to prepare an information memorandum
for formulating a resolution plan; that as per Regulation 37 of CIRP
Regulations, the insolvency resolution of the corporate debtor should include
sale of all or part of the assets, irrespective of whether they are subject to
security interest and satisfaction or modification of any security interest; and
that sub-section (4) of Section 30 of the Insolvency and Bankruptcy
(Amendment) Act, 2019 clarifies that priority of secured creditors has to be
considered. With reference to the processes so envisaged by the Code, it is
128
contended that the secured creditors like the respondent cannot be kept away
from the class of financial creditors.
Central Bank of India
37.5.Apart from the submissions carrying essentially the substance as above-
noted, it is also contended that this respondent, being a secured creditor,
would be entitled to enforce its security interest in the mortgaged property
upon vacation of the order of moratorium in terms of the Securitisation and
Reconstruction Of Financial Assets and Enforcement of Security Interest Act,
2002
50
; and that the resolution plan, without including the secured creditors,
would be unenforceable, as the secured creditors will then seek enforcement
against mortgage property under the SARFAESI Act. It is, therefore,
contended that the secured creditor, like the respondent, needs to be
recognized as financial creditor, and thereby a participant in CoC of the
corporate debtor JIL.
Bank of Maharashtra
37.6.While going in tandem with the submissions aforesaid, it is asserted on
behalf of this respondent that the corporate debtor JIL is under a pecuniary
obligation to discharge the liability in view of the Indenture of Mortgage (IOM)
dated 29.12.2016, which is a contract of guarantee and, therefore, the
relationship between the parties cannot be classified merely as that of
mortgagor and mortgagee, but is also of a guarantor and guarantee which, in
50 Hereinafter also referred to as ‘the SARFAESI Act’
129
turn, is covered under Section 5(8) of the Code and thereby, this respondent is
a ‘financial creditor’ within the meaning of Section 5(7) of the Code.
Unique position of financial creditor- as explained in Swiss Ribbons
38.Having taken note of the rival contentions on the issue as to whether the
lenders of JAL could be categorised as ‘financial creditors’ of JIL for the
purpose of CIRP in question, gist of the matter is as to whether the subject
transactions could be categorised as ‘financial debts’ within the meaning of
Section 5(8) of the Code so as to confer the status of ‘financial creditors’ upon
the respondents, lenders of JAL.
38.1.The expressions “financial creditor” and “financial debt” as occurring in
the Code have come up for consideration before this Court in several
decisions, including those in the above-mentioned cases of Swiss Ribbons
(decided on 25.01.2019), Pioneer Urban (decided on 09.08.2019) and Essar
Steel (decided on 15.11.2019), which have been referred to and relied upon by
learned counsel for the parties for one proposition or another. In fact, the
observations as occurring in the last of the said decisions, in the case of Essar
Steel, as relied upon by the learned counsel for the respondents, are based on
those occurring in the decision in Swiss Ribbons
51
.
51 We have referred to the case of Swiss Ribbons in paragraph 16.1.1 hereinbefore while pointing out
that in Swiss Ribbons, this Court had traversed through the historical background and scheme of the
Code in the wake of challenge to the constitutional validity of various provisions of the Code and while
rejecting such challenge, this Court had observed that the focus of the Code was to ensure revival and
continuation of the corporate debtor, where liquidation is to be availed of only as a last resort; and that
the Code was a beneficial legislation to put the corporate debtor on its feet, and not a mere recovery
legislation for the creditors.
130
39. As indicated hereinbefore, the law declared by this Court in the case of
Swiss Ribbons, while rejecting the contentions that classification between
financial creditor and operational creditor was discriminatory and violative of
Article 14, shall have some bearing on the claim of the respondent-lenders for
being treated as financial creditors of JIL. Having regard to the submissions
made, it shall now be pertinent to take note of the relevant aspects from the
said decision in requisite details.
39.1.The broad features of the expressions used in Sections 5(7) and 5(8) of
the Code in defining the terms “financial creditor” and “financial debt” were
indicated by this Court in the case of Swiss Ribbons in the following:
“42. A perusal of the definition of “financial creditor” and “financial
debt” makes it clear that a financial debt is a debt together with
interest, if any, which is disbursed against the consideration for time
value of money. It may further be money that is borrowed or raised in
any of the manners prescribed in Section 5(8) or otherwise, as
Section 5(8) is an inclusive definition. On the other hand, an
“operational debt” would include a claim in respect of the provision of
goods or services, including employment, or a debt in respect of
payment of dues arising under any law and payable to the
Government or any local authority.”
39.2.The unique position assigned to a ‘financial creditor’, who plays a crucial
role in insolvency resolution process as against the role of other creditors, has
been extensively explained by this Court in the case of Swiss Ribbons, albeit
in the context of its differentiation with the category of ‘operational creditor’, in
the following:
“50. According to us, it is clear that most financial creditors,
particularly banks and financial institutions, are secured creditors
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whereas most operational creditors are unsecured, payments for
goods and services as well as payments to workers not being
secured by mortgaged documents and the like. The distinction
between secured and unsecured creditors is a distinction which
has obtained since the earliest of the Companies Acts both in the
United Kingdom and in this country. Apart from the above, the
nature of loan agreements with financial creditors is different from
contracts with operational creditors for supplying goods and
services. Financial creditors generally lend finance on a term
loan or for working capital that enables the corporate debtor
to either set up and/or operate its business. On the other hand,
contracts with operational creditors are relatable to supply of
goods and services in the operation of business. Financial
contracts generally involve large sums of money. By way of
contrast, operational contracts have dues whose quantum is
generally less. In the running of a business, operational creditors
can be many as opposed to financial creditors, who lend finance
for the set-up or working of business. Also, financial creditors
have specified repayment schedules, and defaults entitle
financial creditors to recall a loan in totality. Contracts with
operational creditors do not have any such stipulations. Also, the
forum in which dispute resolution takes place is completely
different. Contracts with operational creditors can and do have
arbitration clauses where dispute resolution is done privately.
Operational debts also tend to be recurring in nature and the
possibility of genuine disputes in case of operational debts is much
higher when compared to financial debts. A simple example will
suffice. Goods that are supplied may be substandard. Services
that are provided may be substandard. Goods may not have been
supplied at all. All these qua operational debts are matters to be
proved in arbitration or in the courts of law. On the other hand,
financial debts made to banks and financial institutions are well
documented and defaults made are easily verifiable.
51. Most importantly, financial creditors are, from the very
beginning, involved with assessing the viability of the
corporate debtor. They can, and therefore do, engage in
restructuring of the loan as well as reorganisation of the
corporate debtor’s business when there is financial stress,
which are things operational creditors do not and cannot do. Thus,
preserving the corporate debtor as a going concern, while
ensuring maximum recovery for all creditors being the objective of
the Code, financial creditors are clearly different from operational
creditors and therefore, there is obviously an intelligible differentia
132
between the two which has a direct relation to the objects sought
to be achieved by the Code.
*** *** ***
75. Since the financial creditors are in the business of
moneylending, banks and financial institutions are best equipped
to assess viability and feasibility of the business of the corporate
debtor. Even at the time of granting loans, these banks and
financial institutions undertake a detailed market study which
includes a techno-economic valuation report, evaluation of
business, financial projection, etc. Since this detailed study has
already been undertaken before sanctioning a loan, and since
financial creditors have trained employees to assess viability and
feasibility, they are in a good position to evaluate the contents of a
resolution plan. On the other hand, operational creditors, who
provide goods and services, are involved only in recovering
amounts that are paid for such goods and services, and are
typically unable to assess viability and feasibility of business. The
BLRC Report, already quoted above, makes this abundantly
clear.”
(emphasis supplied)
39.3.The enunciation aforementioned illuminates the reasons as to why at all
a financial creditor is conferred with a major, rather pivotal, role in the
processes contemplated by Part II of the Code. It is the financial creditor who
lends finance on a term loan or for working capital that enables the corporate
debtor to set up and/or operate its business; and who has specified repayment
schedules with default consequences. The most important feature, as this
Court has said, is that a financial creditor is, from the very beginning, involved
in assessing the viability of the corporate debtor who can, and indeed, engage
in restructuring of the loan as well as reorganisation of the corporate debtor’s
business when there is financial stress. Hence, a financial creditor is not only
about in terrorem clauses for repayment of dues; it has the unique parental
133
and nursing roles too. In short, the financial creditor is the one whose stakes
are intrinsically inter-woven with the well-being of the corporate debtor.
Financial debt - ratio of Pioneer Urban
40.Having imbibed the basic features associated with a ‘financial creditor’,
we need to examine as to who could at all fall in this category. In order to
address this core question, delving into the finer connotations of the
expression “financial debt”, as defined in Section 5(8) of the Code is,
obviously, necessary. As noticed, while defining ‘financial creditor’ and
‘financial debt’ in Section 5(7) and Section 5(8) of the Code, both the
expressions “means” and “includes” have been used. As per the definition,
while “financial creditor” means a person to whom a “financial debt” is owed, it
also includes a person to whom such debt has been legally assigned or
transferred to. Obviously, a comprehension of this definition of “financial
creditor” cannot be complete without taking into account as to what is the
meaning assigned to the expression “financial debt”. Again, the term “financial
debt” has also been defined with the expressions “means” and “includes”. A
“financial debt” means a debt along with interest, if any, which is disbursed
against the consideration for the time value of money; and it includes the
money borrowed or raised or protected in any of the manners prescribed in
sub-clauses (a) to (i) of Section 5(8).
41.The larger parts of the expressions employed in the definition of
“financial debt” in sub-section (8) of Section 5 of the Code with their
134
connotations were explicated in Pioneer Urban by a three-Judge Bench of this
Court; and, in view of the contentions urged, it would be appropriate to take a
deeper look into the exposition of law by this Court, while also keeping in view
the plain basic principle that a decision of the Court is required to be
understood in the context of the facts and issues involved therein.
41.1.In the case of Pioneer Urban, this Court was concerned with the
challenge to the constitutional validity of amendments made to the Code
pursuant to a report dated 26.03.2018 prepared by the Insolvency and
Bankruptcy Law Committee. The amendments were essentially to the effect of
putting the allottees of real estate projects into the sect of ‘financial creditors’
and thereby investing them with the rights and entitlement to trigger the
proceedings under Section 7 of the Code against the real estate developers
and to be represented in the Committee of Creditors. In the background of
such amendments had been certain important decisions/orders by NCLAT and
by this Court. One had been the order dated 21.07.2017 by the NCLAT in the
case of Nikhil Mehta and Sons (HUF) v. AMR Infrastructure Limited:
(2017) SCC Online NCLAT 859, where it was held that the amount raised by
the developers had the commercial effect of a borrowing and the allottees of
such developers were financial creditors within the meaning of Section 5(7) of
the Code. The other one had been the order dated 11.09.2017 passed by this
Court in Chitra Sharma (supra) whereby, a representative of the home buyers
was appointed to participate in the meetings of the Committee of Creditors for
135
protection of their interests. Yet another order was passed by this Court on
22.11.2017, on practically the same lines, qua another group of builders in the
case of Bikram Chatterjee v. Union of India: 2019 (8) SCC 527. In the wake
of such orders, the Insolvency Committee Report suggested for amendment to
the Code that ultimately culminated into the Insolvency and Bankruptcy
(Second Amendment) Act, 2018. The amendments were made, inter alia, with
insertion of Explanation to sub-clause (f) of Section 5(8) of the Code and with
the co-related insertion of sub-section (6A) to Section 21 as also with further
insertion of Section 25-A in the Code. These amendments were under
challenge in Pioneer Urban. Several contentions were urged before this Court
questioning the treatment of allottees as financial creditors. In this context and
in the wake of such issues this Court dealt with the contentions related with
Section 5(8), particularly sub-clause (f) thereof. The relevant part of the
consideration of this Court in Pioneer Urban under the heading ‘Interpretation
of Section 5(8)(f) of the Code’ needs to be noticed and is extracted as
under:-
“66. Section 5(8)(f) of the Code has been set out in the beginning
of this judgment. What has been argued by learned counsel on
behalf of the petitioners is that Section 5(8)( f ), as it originally
stood, is an exhaustive provision which must be read noscitur a
sociis, and if so read, sub-clause (f) must take colour from the
other clauses of the provision, all of which show that the sine qua
non of a “financial debt” is a loan of money made with or without
interest, which must then be returned as money. This, according to
the learned counsel for the petitioners, is clear from even a
cursory reading of Section 5(8). Secondly, according to learned
counsel for the petitioners, by no stretch of imagination, could an
136
allottee under a real estate project fall within Section 5(8)( f ), as it
originally stood and the Explanation must then be read
prospectively i.e. only on and from the date of the Amendment
Act. Several sub-arguments were made on the effect of deeming
fictions generally and on the functions of an explanation to a
section. Let us address all of these arguments.
*** *** ***
68. Thus, in order to be a “debt”, there ought to be a liability or
obligation in respect of a “claim” which is due from any person.
“Claim” then means either a right to payment or a right to payment
arising out of breach of contract, and this claim can be made
whether or not such right to payment is reduced to judgment.
Then comes “default”, which in turn refers to non-payment of debt
when whole or any part of the debt has become due and payable
and is not paid by the corporate debtor. Learned counsel for the
petitioners relied upon the judgment in Union of India v . Raman
Iron Foundry : (1974) 2 SCC 231, and, in particular relied strongly
upon the sentence reading: (SCC p.243, para 11)
“11....Now the law is well settled that a claim for unliquidated
damages does not give rise to a debt until the liability is
adjudicated and damages assessed by a decree or order of a
court or other adjudicatory authority.”
69. It is precisely to do away with judgments such as Raman Iron
Foundry (supra) that “claim” is defined to mean a right to payment
or a right to remedy for breach of contract whether or not such
right is reduced to judgment. What is clear, therefore, is that a
debt is a liability or obligation in respect of a right to payment,
even if it arises out of breach of contract, which is due from any
person, notwithstanding that there is no adjudication of the said
breach, followed by a judgment or decree or order. The
expression “payment” is again an expression which is elastic
enough to include “recompense”, and includes repayment. For this
purpose, see H.P. Housing and Urban Development Authority v.
Ranjit Singh Rana : (2012) 4 SCC 505 (at paragraphs 13 and 14
therein), where the Webster’s Comprehensive Dictionary
(International Edn.) Vol. 2 and the Law Lexicon by P. Ramanatha
Aiyar (2nd Edn., Reprint) are quoted.
70. The definition of “financial debt” in Section 5(8) then goes on
to state that a “debt” must be “disbursed” against
the consideration for time value of money. “Disbursement” is
defined in Black’s Law Dictionary (10th Edn.) to mean:
137
“1. The act of paying out money, commonly from a fund or in
settlement of a debt or account payable. 2. The money so paid;
an amount of money given for a particular purpose.”
71. In the present context, it is clear that the expression
“disburse” would refer to the payment of instalments by the
allottee to the real estate developer for the particular purpose of
funding the real estate project in which the allottee is to be allotted
a flat/apartment. The expression “disbursed” refers to money
which has been paid against consideration for the “time value of
money”. In short, the “disbursal” must be money and must be
against consideration for the “time value of money”, meaning
thereby, the fact that such money is now no longer with the lender,
but is with the borrower, who then utilises the money. Thus far, it is
clear that an allottee “disburses” money in the form of advance
payments made towards construction of the real estate project.
We were shown the Dictionary of Banking Terms (2nd Edn.) by
Thomas P. Fitch in which “time value for money” was defined thus:
“present value: today’s value of a payment or a stream of
payment amount due and payable at some specified future
date, discounted by a compound interest rate of DISCOUNT
RATE. Also called the time value of money. Today’s value of a
stream of cash flows is worth less than the sum of the cash
flows to be received or saved over time. Present value
accounting is widely used in DISCOUNTED CASH FLOW
analysis.” (emphasis supplied)
That this is against consideration for the time value of money is
also clear as the money that is “disbursed” is no longer with the
allottee, but, as has just been stated, is with the real estate
developer who is legally obliged to give money’s equivalent back
to the allottee, having used it in the construction of the project, and
being at a discounted value so far as the allottee is concerned (in
the sense of the allottee having to pay less by way of instalments
than he would if he were to pay for the ultimate price of the
flat/apartment).
*** *** ***
74. What is clear from what Shri Venugopal has read to us is that
a wide range of transactions are subsumed by para (f) and that
the precise scope of para (f) is uncertain. Equally, para (f) seems
to be a “catch all” provision which is really residuary in nature, and
138
which would subsume within it transactions which do not, in fact,
fall under any of the other sub-clauses of Section 5(8).
75. And now to the precise language of Section 5(8)( f ). First and
foremost, the sub-clause does appear to be a residuary provision
which is “catch all” in nature. This is clear from the words “any
amount” and “any other transaction” which means that amounts
that are “raised” under “transactions” not covered by any of the
other clauses, would amount to a financial debt if they had the
commercial effect of a borrowing. The expression “transaction” is
defined by Section 3(33) of the Code as follows:
3.(33) “transaction” includes an agreement or arrangement in
writing for the transfer of assets, or funds, goods or services,
from or to the corporate debtor;
As correctly argued by the learned Additional Solicitor General,
the expression “any other transaction” would include
an arrangement in writing for the transfer of funds to the corporate
debtor and would thus clearly include the kind of financing
arrangement by allottees to real estate developers when they pay
instalments at various stages of construction, so that they
themselves then fund the project either partially or completely.
76. Sub-clause (f) Section 5(8) thus read would subsume within it
amounts raised under transactions which are not necessarily loan
transactions, so long as they have the commercial effect of a
borrowing. We were referred to Collins English Dictionary &
Thesaurus (2nd Edn., 2000) for the meaning of the expression
“borrow” and the meaning of the expression “commercial”. They
are set out hereinbelow:
“borrow-vb 1. to obtain or receive (something, such as money)
on loan for temporary use, intending to give it, or something
equivalent back to the lender. 2. to adopt (ideas, words, etc.)
from another source; appropriate. 3. Not standard. to lend. 4.
(intr) Golf. To putt the ball uphill of the direct path to the hole:
make sure you borrow enough.”
*** *** ***
“commercial. -adj. 1. of or engaged in commerce. 2. sponsored
or paid for by an advertiser: commercial television. 3. having
profit as the main aim: commercial music. 4. (of chemicals, etc.)
139
unrefined and produced in bulk for use in industry. 5. a
commercially sponsored advertisement on radio or television.”
77. A perusal of these definitions would show that even though the
petitioners may be right in stating that a “borrowing” is a loan of
money for temporary use, they are not necessarily right in stating
that the transaction must culminate in money being given back to
the lender. The expression “borrow” is wide enough to include an
advance given by the homebuyers to a real estate developer for
“temporary use” i.e. for use in the construction project so long as it
is intended by the agreement to give “something equivalent” to
money back to the homebuyers. The “something equivalent” in
these matters is obviously the flat/apartment. Also of importance is
the expression “commercial effect”. “Commercial” would generally
involve transactions having profit as their main aim. Piecing the
threads together, therefore, so long as an amount is “raised” under
a real estate agreement, which is done with profit as the main aim,
such amount would be subsumed within Section 5(8) (f ) as the
sale agreement between developer and home buyer would have
the “commercial effect” of a borrowing, in that, money is paid in
advance for temporary use so that a flat/apartment is given back
to the lender. Both parties have “commercial” interests in the same
– the real estate developer seeking to make a profit on the sale of
the apartment, and the flat/apartment purchaser profiting by the
sale of the apartment. Thus construed, there can be no difficulty in
stating that the amounts raised from allottees under real estate
projects would, in fact, be subsumed within Section 5(8) (f ) even
without adverting to the explanation introduced by the Amendment
Act.
*** *** ***
79. That this amendment is in fact clarificatory is also made clear
by the Insolvency Committee Report, which expressly uses the
word “clarify”, indicating that the Insolvency Law Committee also
thought that since there were differing judgments and doubts
raised on whether homebuyers would or would not be included
within Section 5(8)( f), it was best to set these doubts at rest by
explicitly stating that they would be so covered by adding an
explanation to Section 5(8)( f ). Incidentally, the Insolvency Law
Committee itself had no doubt that given the “financing” of the
project by the allottees, they would fall within Section 5(8)(f) of the
Code as originally enacted.”
140
41.1.1.It is, therefore, evident that this Court, even while interpreting sub-
clause (f) of Section 5(8) on the question as to whether an allottee under a real
estate project could fall thereunder, analysed the gamut of the relevant
expressions of ‘disbursement’, ‘borrowing’ and ‘time value of money’, being the
root ingredients of ‘financial debt’ within the meaning of the Code.
41.1.2.It is significant to notice that in the case of Pioneer Urban, one line of
arguments on behalf of the petitioners, who led challenge to the amendments,
had been that the use of expression “means and includes” in Section 5(8) was
indicative that the provision was exhaustive and in that position, alien subject-
matter such as home buyers could not have been inserted therein. The
decision of this Court in the case of P. Kasilingam & Ors. v. P.S.G. College
of Technology & Ors : (1995) Suppl. 2 SCC 348 was relied upon by the
petitioners wherein, this Court had rejected an argument that the expression
“means and includes” indicated that the definition was inclusive in nature and
would also cover the categories which were not mentioned therein. In P.
Kasilingam, this Court had said that the use of the word ‘means’ indicates that
the definition is a hard and fast definition and no other meaning could be
assigned to the expression than is put down in the definition. As regards the
word ‘includes’, this Court said that it enlarges the meaning of the expression
defined so as to comprehend not only such things as they signify according to
their natural import but also those things which the clause declares that they
shall include. Further, this Court said that the words 'means and includes', on
141
the other hand, indicate ‘an exhaustive explanation’ of the meaning which, for
the purposes of the Act, must invariably be attached to these words or
expressions. On the other hand, another decision of this Court in Krishi
Utapadan Mandi Samiti & Anr v. M/s Shankar Industries & Ors : 1993
Suppl. (3) SCC 361 was referred on behalf of the respondents wherein, the
Court had considered a definition clause whereby the expression “agricultural
produce” was defined to mean such items of produce of agriculture,
horticulture, viticulture, apiculture, sericulture, pisciculture, animal husbandry,
or forest as specified in the Schedule and then, the definition included therein
admixture of two or more of such items, and further included any such item in
processed form and yet further included specific items like gur, rub, shakkar,
khandsari and jaggery. While examining such definition in Krishi Utapadan
Mandi Samiti, the Court proceeded to say that under the rules of interpretation,
when the words ‘means and includes’ are used in a definition, they are to be
given a wider meaning and are not exhaustive or restricted to the items
contained therein. This statement of law in Krishi Utapadan Mandi Samiti was
held by the three-Judge Bench of this Court in Pioneer Urban to be not that of
good law for it ignored the earlier precedents of larger and coordinate Benches
and was also out of sync with the later decisions on the same point. However,
and at the same time, the arguments on behalf of the petitioners, that sub-
clauses (a) to (i) of Section 5(8) of the Code must necessarily reflect the fact
that the financial debt could only be a debt disbursed against the consideration
142
for the time value of money and which permeates sub-clauses (a) to (i), was
also not accepted as a matter of statutory interpretation while observing that
the expression “and includes” speaks of the subject matter which may not
necessarily be reflected in the main part of the definition. These observations
of the Court, after reproduction of the relevant extracts from the referred
decisions, read as under:
“82. This statement of the law, as can be seen from the quotation
hereinabove, is without citation of any authority. In fact, in Jagir
Singh. v. State of Bihar.: (1976) 2 SCC 942 at paras 11 and 19 to
21 and Mahalakshmi Oil Mills v. State of A.P.: (1989) 1 SCC 164,
at paras 8 and 11 (which has been cited in P. Kasilingam : 1995
Supp (2) SCC 348) this Court set out definition sections where the
expression "means" was followed by some words, after which
came the expression "and includes" followed by other words, just
as in the Krishi Utpadan Mandi Samiti case : 1993 Supp (3) SCC
361 (2). In two other recent judgments, Bharat Coop. Bank
(Mumbai) Ltd. v. Employees Union: (2007) 4 SCC 685, at paras 12
and 23 and State of W.B. v. Associated Contractors : (2015) 1
SCC 32 at para 14, this Court has held that wherever the
expression "means" is followed by the expression "and includes"
whether with or without additional words separating "means" from
"includes", these expressions indicate that the definition provision
is exhaustive as a matter of statutory interpretation. It has also
been held that the expression "and includes" is an expression
which extends the definition contained in words which follow the
expression "means". From this discussion, two things follow.
Krishi Utpadan Mandi Samiti cannot be said to be good law
insofar as its exposition on "means" and "includes" is
concerned, as it ignores earlier precedents of larger and
coordinate Benches and is out of sync with later decisions on the
same point. Equally, Dr. Singhvi's argument that clauses (a) to
(i) of Section 5(8) of the Code must all necessarily reflect the
fact that a financial debt can only be a debt which is
disbursed against the consideration for the time value of
money, and which permeates clauses (a) to (i), cannot be
accepted as a matter of statutory interpretation, as the
expression "and includes" speaks of subject-matters which
143
may not necessarily be reflected in the main part of the
definition.”
(emphasis supplied)
41.1.3.In the end, however, this Court rejected the contentions urged on
behalf of the petitioners while accepting other line of submissions on behalf of
the respondents that the legislature is not precluded by way of amendment
from inserting words into what may even be an exhaustive definition and while
observing that an exhaustive definition is exhaustive only for the purposes of
interpretation of a statute by the Courts. This Court said,-
“83. In any event, as was correctly argued by learned Additional
Solicitor General Mrs. Madhavi Divan, the legislature is not
precluded by way of amendment from inserting words into what
may even be an exhaustive definition. What is an exhaustive
definition is exhaustive for purposes of interpretation of a statute
by the courts, which cannot bind the legislature when it adds
something to the statute by way of amendment. On this score
also, there is no substance in the aforesaid argument.”
41.1.4.This Court ultimately found that the Explanation was added by the
Amendment Act only to clarify the doubt that had arisen as to whether home
buyers/allottees were subsumed within Section 5(8)(f) of the Code. In
essence, the amendment in question was interpreted to be clarificatory in
nature so as to put beyond doubt that allottees are to be regarded as financial
creditors within the enacting part of Section 5(8)(f) of the Code. The
Amendment Act was upheld with this Court holding as under:
“96. In the present case, it is clear that the deeming fiction that is
used by the Explanation is to put beyond doubt the fact that
allottees are to be regarded as financial creditors within the
enacting part contained in Section 5(8)(f) of the Code.
144
97. It was also argued that an explanation does not enlarge the
scope of the original section and for this purpose S. Sundaram
Pillai : (1985) 1 SCC 591 was relied upon. This very judgment
recognises, in para 46, that an explanation does not ordinarily
enlarge the scope of the original section. But if it does, effect must
be given to the legislative intent notwithstanding the fact that the
legislature has named a provision as an explanation. [See Hiralal
Ratanlal v. State of U.P.: (1973) 1 SCC 216 at p. 225, followed in
para 51 of Sundram Pillai]. In any case, it has been found by us
that the Explanation was added by the Amendment Act only
to clarify doubts that had arisen as to whether
homebuyers/allottees were subsumed within Section 5(8)(f).
The Explanation added to Section 5(8)(f) of the Code by the
Amendment Act does not in fact enlarge the scope of the
original section as homebuyers/allottees would be subsumed
within Section 5(8)(f) as it originally stood as has been held by
us hereinabove. As a matter of statutory interpretation, that
interpretation, which accords with the objects of the statute in
question, particularly when we are dealing with a beneficial
legislation, is always the better interpretation or the "creative
interpretation" which is the modern trend of authority, and which is
reflected in the concurring judgment of Eera v. State (NCT of
Delhi) : (2017) 15 SCC 133 paras 122 and 127. This argument
must, therefore, also be rejected.
98. We, therefore, hold that allottees/homebuyers were
included in the main provision, i.e. Section 5(8)(f) with effect
from the inception of the Code, the explanation being added
in 2018 merely to clarify doubts that had arisen.”
(emphasis supplied)
41.1.5.For taking into comprehension the ratio of Pioneer Urban (supra) and
for its application to the question at hand, appropriate it would be to recount
the basic principles expounded and explained by a three-Judge Bench in the
case of Haryana Financial Corporation and Anr. v. Jagdamba Oil Mills
and Anr.: (2002) 3 SCC 496 that the observations of the Court in a judgment
are always required to be read in the context in which they appear. This Court
has said,-
145
“19. Courts should not place reliance on decisions without
discussing as to how the factual situation fits in with the fact
situation of the decision on which reliance is placed. Observations
of courts are not to be read as Euclid’s theorems nor as provisions
of the statute. These observations must be read in the context in
which they appear. Judgments of courts are not to be construed
as statutes. To interpret words, phrases and provisions of a
statute, it may become necessary for Judges to embark upon
lengthy discussions but the discussion is meant to explain and not
to define. Judges interpret statutes, they do not interpret
judgments. They interpret words of statutes, their words are not to
be interpreted as statutes. In London Graving Dock Co. Ltd. v.
Horton : 1951 AC 737 (at p. 761) Lord MacDermot observed: (All
ER p. 14C-D)
“The matter cannot, of course, be settled merely by treating
the ipsissima verba of Willes, J., as though they were part of
an Act of Parliament and applying the rules of interpretation
appropriate thereto. This is not to detract from the great
weight to be given to the language actually used by that most
distinguished Judge.”
20. In Home Office v. Dorset Yacht Co. : (1970) 2 All ER 294 Lord
Reid said (at All ER p. 297g-h), “Lord Atkin’s speech … is not to
be treated as if it were a statutory definition. It will require
qualification in new circumstances”. Megarry, J. in (1971) 1 WLR
1062 observed: “One must not, of course, construe even a
reserved judgment of even Russell, L.J. as if it were an Act of
Parliament.” And, in Herrington v. British Railways Board: (1972) 2
WLR 537 Lord Morris said: (All ER p. 761c)
“There is always peril in treating the words of a speech or a
judgment as though they were words in a legislative
enactment, and it is to be remembered that judicial
utterances are made in the setting of the facts of a particular
case.”
21. Circumstantial flexibility, one additional or different fact may
make a world of difference between conclusions in two cases.
Disposal of cases by blindly placing reliance on a decision is not
proper.”
41.1.6.Read as a whole and with reference to its context, it is but clear that in
Pioneer Urban this Court has not enunciated that the scope of the expression
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‘financial debt’ be read as if to encompass any debt of whatsoever nature.
Rather, a submission made therein, with reference to the decision in Krishi
Utapadan Mandi Samiti, that ‘and includes’ part in a definition may lead to it
being extensive, was rejected by this Court while holding that the said decision
was not a good law. However, the other extreme of submissions, seeking
restrictive interpretation with reference to ‘means’ part of the definition, was
also not accepted and, in that context, the Court observed that the expression
‘and includes’ speaks of subject-matters which may not necessarily be
reflected in the main part of the definition. Obviously, there could be several
subject-matters which may not, as such, be found squarely manifested in the
expressions employed in the ‘means’ part of a definition and could be
reasonably found in the ‘includes’ part. However, it has not been laid down as
a rule of statutory interpretation that the ‘includes’ part could stand alone,
disjunct from and totally alien to the ‘means’ part.
The expressions “means and includes” in the definition clauses - effect
42.Looking to the frame of the Code, where the significant expressions
“financial creditor” and “financial debt” have been defined with the words “means”
and “includes”, we may further refer to the principles of construction of such a
definition clause in a statute. Tersely put, the law remains settled that where a
word is defined to ‘mean’ something, the definition is prime facie restrictive and
exhaustive. On the other hand, where the word defined is declared to ‘include’
147
something more, the definition is prima facie extensive. However, a little difficulty
arises when the definition contains both the words ‘means’ and ‘includes’
52
.
42.1.As noticed, in the case of Pioneer Urban, a suggestion made on behalf
of the respondents with reference to the decision in Krishi Utapadan Mandi
Samiti, that when the words ‘means and includes’ are used in a definition, they
are to be given a wider meaning and are not exhaustive or restricted to the
items contained therein, was not accepted by this Court; and the statement of
law in Krishi Utapadan Mandi Samiti was held to be not that of good law for it
ignored the earlier precedents of larger and coordinate Benches and was also
out of sync with the later decisions on the same point. However, the other
extreme of interpretation, as canvassed by the petitioners, that a financial debt
could only be a debt which is disbursed against the consideration for the time
value of money, and such requirement pervades all sub-clauses (a) to (i), was
also not accepted as a matter of statutory interpretation by this Court while
observing that the expression ‘and includes’ speaks of subject matters which
may not necessarily be reflected in the main part of the definition. Thus, it is
evident that this Court did not accept either of the extremities suggested by the
parties in Pioneer Urban for interpretation and implication of the expressions
‘means and includes’ in a definition clause of the statute. Significantly, in
52 Craise on Statue Law ( Seventh Ed.-Indian reprint 1999 page 213) has stated this feature as follows:
There are two forms of interpretation clause. In one, where the word defined is declared to
“mean” so and so, the definition is explanatory and prima facie restrictive. In the other, where the word
defined is declared to ”include” so and so, the definition is extensive, e.g. “sheriff” includes “under-
sheriff”. Sometimes the definition contains the words “mean and include”,” which inevitably raises a
doubt as to interpretation.
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Pioneer Urban, none of the extremities had any bearing on the conclusion
because, eventually, the amendment in question was held to be only
clarificatory in nature; and this Court held that the Explanation added to
Section 5(8)(f) of the Code by the Amendment Act did not enlarge the scope of
the original Section.
42.2.Various features of the process of interpretation while dealing with such
definition clauses were explained by this Court in the case of Delhi
Development Authority v. Bhola Nath Sharma (Dead) by LRs & Ors:
(2011) 2 SCC 54 in the following:
“25. The definition of the expressions “local authority” and “person
interested” are inclusive and not exhaustive. The difference
between exhaustive and inclusive definitions has been explained
in P. Kasilingam v. P.S.G. College of Technology : 1995 Supp (2)
SCC 348 in the following words: (SCC p. 356, para 19)
“19. … A particular expression is often defined by the
legislature by using the word ‘means’ or the word ‘includes’.
Sometimes the words ‘means and includes’ are used. The
use of the word ‘means’ indicates that ‘definition is a hard-
and-fast definition, and no other meaning can be assigned to
the expression than is put down in definition’. (See Gough v.
Gough : (1891) 2 QB 665 (CA); Punjab Land Development
and Reclamation Corpn. Ltd. v. Labour Court : (1990) 3 SCC
682, SCC p. 717, para 72.) The word ‘includes’ when used,
enlarges the meaning of the expression defined so as to
comprehend not only such things as they signify according to
their natural import but also those things which the clause
declares that they shall include. The words ‘means and
includes’, on the other hand, indicate ‘an exhaustive
explanation of the meaning which, for the purposes of the
Act, must invariably be attached to these words or
expressions’. [See Dilworth v. Commr. of Stamps : 1899 AC
99 (Lord Watson); Mahalakshmi Oil Mills v. State of A.P. :
(1989) 1 SCC 164, SCC p. 170, para 11.] The use of the
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words ‘means and includes’ in Rule 2(b) would, therefore,
suggest that the definition of ‘college’ is intended to be
exhaustive and not extensive and would cover only the
educational institutions falling in the categories specified in
Rule 2(b) and other educational institutions are not
comprehended. Insofar as engineering colleges are
concerned, their exclusion may be for the reason that the
opening and running of the private engineering colleges are
controlled through the Board of Technical Education and
Training and the Director of Technical Education in
accordance with the directions issued by the AICTE from time
to time.”
26. In Bharat Coop. Bank (Mumbai) Ltd. v. Employees Union :
(2007) 4 SCC 685 this Court again considered the difference
between the inclusive and exhaustive definitions and observed:
(SCC p. 695, para 23)
“23. … when in the definition clause given in any statute the
word ‘means’ is used, what follows is intended to speak
exhaustively. When the word ‘means’ is used in the definition
… it is a ‘hard-and-fast’ definition and no meaning other than
that which is put in the definition can be assigned to the
same. … On the other hand, when the word ‘includes’ is used
in the definition, the legislature does not intend to restrict the
definition: it makes the definition enumerative but not
exhaustive. That is to say, the term defined will retain its
ordinary meaning but its scope would be extended to bring
within it matters, which in its ordinary meaning may or may
not comprise. Therefore, the use of the word ‘means’ followed
by the word ‘includes’ in [the definition of ‘banking company’
in] Section 2(bb) of the ID Act is clearly indicative of the
legislative intent to make the definition exhaustive and would
cover only those banking companies which fall within the
purview of the definition and no other.”
27. In N.D.P. Namboodripad v. Union of India : (2007) 4 SCC 502
the Court observed: (SCC p. 509, para 18)
“18. The word ‘includes’ has different meanings in different
contexts. Standard dictionaries assign more than one
meaning to the word ‘include’. Webster’s Dictionary defines
the word ‘include’ as synonymous with ‘comprise’ or ‘contain’.
Illustrated Oxford Dictionary defines the word ‘include’ as: (i)
comprise or reckon in as a part of a whole; (ii) treat or regard
as so included. Collins Dictionary of English Language
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defines the word ‘includes’ as: (i) to have as contents or part
of the contents; be made up of or contain; (ii) to add as part
of something else; put in as part of a set, group or a category;
(iii) to contain as a secondary or minor ingredient or element.
It is no doubt true that generally when the word ‘include’ is
used in a definition clause, it is used as a word of
enlargement, that is to make the definition extensive and not
restrictive. But the word ‘includes’ is also used to connote a
specific meaning, that is, as ‘means and includes’ or
‘comprises’ or ‘consists of’.”
(emphasis in original)
28. In Hamdard (Wakf) Laboratories v. Labour Commr. : (2007) 5
SCC 281 it was held as under: (SCC p. 294, para 33)
“33. When an interpretation clause uses the word ‘includes’, it
is prima facie extensive. When it uses the word ‘means and
includes’, it will afford an exhaustive explanation to the
meaning which for the purposes of the Act must invariably be
attached to the word or expression.”
42.3.In the case of Black Diamond Beverages & Anr. v. Commercial Tax
Office, Central Section, Assessment Wing, Calcutta & Ors.: (1998) 1 SCC
458, while examining a definition that carried both ‘means’ and ‘includes’
expressions, this Court pointed out that the natural meaning of the ‘means’
part of the definition is not narrowed down by the ‘includes’ part. This Court
extracted the definition in question and said,-
“5. The 1954 Act generally provides for levy of a single-point tax
at the first stage on commodities notified under Section 25 of that
Act. On the other hand, the 1941 Act is a general statute providing
for multipoint levy of sales tax on commodities not covered by the
1954 Act. Sub-clause (d) of Section 2 of the 1954 Act reads as
follows:
“2. (d) ‘sale-price’ used in relation to a dealer means
the amount of the money consideration for the sale of
notified commodities manufactured, made or
processed by him in West Bengal, or brought by him
into West Bengal from any place outside West Bengal,
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for the purpose of sale in West Bengal, less any sum
allowed as cash discount according to trade practice,
but includes any sum charged for containers or other
materials for the packaging of notified commodities;”
(emphasis supplied)
6. We shall first deal with the contention of the appellants’ counsel
based upon the non-inclusion of “freight charges” in the definition
of sale price in Section 2(d) of the 1954 Act.
7. It is clear that the definition of “sale price” in Section 2(d) uses
the words “means” and “includes”. The first part of the definition
defines the meaning of the word “sale price” and must, in our view,
be given its ordinary, popular or natural meaning. The
interpretation thereof is in no way controlled or affected by the
second part which “includes” certain other things in the definition.
This is a well-settled principle of construction. Craies on Statute
Law (7th Edn., 1.214) says:
“An interpretation clause which extends the meaning of
a word does not take away its ordinary meaning….
Lord Selborne said in Robinson v. Barton-Eccles Local
Board : (1883) 8 AC 798, AC at p. 801:
‘An interpretation clause of this kind is not meant to
prevent the word receiving its ordinary, popular, and
natural sense whenever that would be properly
applicable, but to enable the word as used in the Act
… to be applied to something to which it would not
ordinarily be applicable.’ ”
(emphasis supplied)
Therefore, the inclusive part of the definition cannot prevent the
main provision from receiving its natural meaning.”
The essentials for financial debt and financial creditor
43.Applying the aforementioned fundamental principles to the definition
occurring in Section 5(8) of the Code, we have not an iota of doubt that for a debt
to become ‘financial debt’ for the purpose of Part II of the Code, the basic
elements are that it ought to be a disbursal against the consideration for time
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value of money. It may include any of the methods for raising money or incurring
liability by the modes prescribed in sub-clauses (a) to (f) of Section 5(8); it may
also include any derivative transaction or counter-indemnity obligation as per
sub-clauses (g) and (h) of Section 5(8); and it may also be the amount of any
liability in respect of any of the guarantee or indemnity for any of the items
referred to in sub-clauses (a) to (h). The requirement of existence of a debt,
which is disbursed against the consideration for the time value of money, in our
view, remains an essential part even in respect of any of the
transactions/dealings stated in sub-clauses (a) to (i) of Section 5(8), even if it is
not necessarily stated therein. In any case, the definition, by its very frame,
cannot be read so expansive, rather infinitely wide, that the root requirements of
‘disbursement’ against ‘the consideration for the time value of money’ could be
forsaken in the manner that any transaction could stand alone to become a
financial debt. In other words, any of the transactions stated in the said sub-
clauses (a) to (i) of Section 5(8) would be falling within the ambit of ‘financial
debt’ only if it carries the essential elements stated in the principal clause or at
least has the features which could be traced to such essential elements in the
principal clause. In yet other words, the essential element of disbursal, and that
too against the consideration for time value of money, needs to be found in the
genesis of any debt before it may be treated as ‘financial debt’ within the
meaning of Section 5(8) of the Code. This debt may be of any nature but a part
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of it is always required to be carrying, or corresponding to, or at least having
some traces of disbursal against consideration for the time value of money.
44.As noticed, the root requirement for a creditor to become financial
creditor for the purpose of Part II of the Code, there must be a financial debt
which is owed to that person. He may be the principal creditor to whom the
financial debt is owed or he may be an assignee in terms of extended meaning
of this definition but, and nevertheless, the requirement of existence of a debt
being owed is not forsaken.
45.It is also evident that what is being dealt with and described in Section
5(7) and in Section 5(8) is the transaction vis-à-vis the corporate debtor.
Therefore, for a person to be designated as a financial creditor of the
corporate debtor, it has to be shown that the corporate debtor owes a financial
debt to such person. Understood this way, it becomes clear that a third party
to whom the corporate debtor does not owe a financial debt cannot become its
financial creditor for the purpose of Part II of the Code.
46.Expounding yet further, in our view, the peculiar elements of these
expressions “financial creditor” and “ financial debt”, as occurring in Sections
5(7) and 5(8), when visualised and compared with the generic expressions
“creditor” and “debt” respectively, as occurring in Sections 3(10) and 3(11) of
the Code, the scheme of things envisaged by the Code becomes clearer. The
generic term “creditor” is defined to mean any person to whom the debt is
owed and then, it has also been made clear that it includes a ‘financial
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creditor’, a ‘secured creditor’, an ‘unsecured creditor’, an ‘operational creditor’,
and a ‘decree-holder’. Similarly, a “debt” means a liability or obligation in
respect of a claim which is due from any person and this expression has also
been given an extended meaning to include a ‘financial debt’ and an
‘operational debt’.
46.1.The use of the expression “means and includes” in these clauses, on
the very same principles of interpretation as indicated above, makes it clear
that for a person to become a creditor, there has to be a debt i.e., a liability or
obligation in respect of a claim which may be due from any person. A “secured
creditor” in terms of Section 3(30) means a creditor in whose favour a security
interest is created; and “security interest”, in terms of Section 3(31), means a
right, title or interest or claim of property created in favour of or provided for a
secured creditor by a transaction which secures payment for the purpose of an
obligation and it includes, amongst others, a mortgage. Thus, any mortgage
created in favour of a creditor leads to a security interest being created and
thereby, the creditor becomes a secured creditor. However, when all the
defining clauses are read together and harmoniously, it is clear that the
legislature has maintained a distinction amongst the expressions ‘financial
creditor’, ‘operational creditor’, ‘secured creditor’ and ‘unsecured creditor’.
Every secured creditor would be a creditor; and every financial creditor would
also be a creditor but every secured creditor may not be a financial creditor. As
noticed, the expressions “financial debt” and “financial creditor”, having their
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specific and distinct connotations and roles in insolvency and liquidation
process of corporate persons, have only been defined in Part II whereas the
expressions “secured creditor” and “security interest” are defined in Part I.
47.A conjoint reading of the statutory provisions with the enunciation of this
Court in Swiss Ribbons (supra), leaves nothing to doubt that in the scheme of
the IBC, what is intended by the expression ‘financial creditor’ is a person who
has direct engagement in the functioning of the corporate debtor; who is
involved right from the beginning while assessing the viability of the corporate
debtor; who would engage in restructuring of the loan as well as in
reorganisation of the corporate debtor’s business when there is financial
stress. In other words, the financial creditor, by its own direct involvement in a
functional existence of corporate debtor, acquires unique position, who could
be entrusted with the task of ensuring the sustenance and growth of the
corporate debtor, akin to that of a guardian. In the context of insolvency
resolution process, this class of stakeholders namely, financial creditors, is
entrusted by the legislature with such a role that it would look forward to
ensure that the corporate debtor is rejuvenated and gets back to its wheels
with reasonable capacity of repaying its debts and to attend on its other
obligations. Protection of the rights of all other stakeholders, including other
creditors, would obviously be concomitant of such resurgence of the corporate
debtor.
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47.1.Keeping the objectives of the Code in view, the position and role of a
person having only security interest over the assets of the corporate debtor
could easily be contrasted with the role of a financial creditor because the
former shall have only the interest of realising the value of its security (there
being no other stakes involved and least any stake in the corporate debtor’s
growth or equitable liquidation) while the latter would, apart from looking at
safeguards of its own interests, would also and simultaneously be interested in
rejuvenation, revival and growth of the corporate debtor. Thus understood, it is
clear that if the former i.e., a person having only security interest over the
assets of the corporate debtor is also included as a financial creditor and
thereby allowed to have its say in the processes contemplated by Part II of the
Code, the growth and revival of the corporate debtor may be the casualty.
Such result would defeat the very objective and purpose of the Code,
particularly of the provisions aimed at corporate insolvency resolution.
47.2.Therefore, we have no hesitation in saying that a person having only
security interest over the assets of corporate debtor (like the instant third party
securities), even if falling within the description of ‘secured creditor’ by virtue of
collateral security extended by the corporate debtor, would nevertheless stand
outside the sect of ‘financial creditors’ as per the definitions contained in sub-
sections (7) and (8) of Section 5 of the Code. Differently put, if a corporate
debtor has given its property in mortgage to secure the debts of a third party, it
may lead to a mortgage debt and, therefore, it may fall within the definition of
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‘debt’ under Section 3(10) of the Code. However, it would remain a debt alone
and cannot partake the character of a ‘financial debt’ within the meaning of
Section 5(8) of the Code.
The respondent mortgagees are not the financial creditors of corporate
debtor JIL
48.Indisputably, the debts in question are in the form of third party security;
said to have been given by the corporate debtor JIL so as to secure the
loans/advances/facilities obtained by JAL from the respondent-lenders. Such a
‘debt’ is not and cannot be a ‘financial debt’ within the meaning of Section 5(8)
of the Code; and hence, the respondent-lenders, the mortgagees, are not the
‘financial creditors’ of the corporate debtor JIL.
49.Though several decisions have been cited on behalf of the respondent-
lenders to contend that they do fall within the definition of ‘financial creditor’ but
for what has been discussed hereinabove, it does not appear necessary to
dilate upon all of them. However, it would be appropriate to take note of the
relevant decisions strongly relied upon by the respondents as infra.
50.Much emphasis is laid on behalf of the respondents on the observations
occurring in another three-Judge Bench decision of this Court in the case of
Essar Steel and predominantly on the observation therein, that “secured
creditors as a class are subsumed in the class of financial creditors”. Again,
the decisions of the Court are required to be understood with reference to the
context. In the case of Essar Steel, the questions before the Court related to
the roles of resolution applicant, resolution professional and Committee of
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Creditors constituted under the Code and the jurisdiction of Adjudicating
Authority as also the Appellate Tribunal in questioning the resolution plans.
The constitutional validity of the Insolvency and Bankruptcy (Amendment) Act,
2019 was also under challenge. The problem arose essentially with the
decision of NCLAT holding that in a resolution plan, there could be no
difference amongst the creditors in that, a financial creditor and operational
creditor deserve equal treatment under a resolution plan. It was in the setup of
such background that in Essar Steel, this Court made the observations relied
upon by the respondents.
50.1.The referred observations in the case of Essar Steel are essentially
based on the earlier observations occurring in the case of Swiss Ribbons. As
noticed, the decision in Swiss Ribbons was rendered by this Court when
constitutional validity of various provisions of the Code was put to challenge. In
Essar Steel, this Court reiterated the enunciations in Swiss Ribbons in
paragraph 55 in the following:
“55. Financial creditors are in the business of lending money. The
RBI report on Trend and Progress of Banking in India, 2017-2018
reflects that the net interest margin of Indian banks for the financial
year 2017-2018 is averaged at 2.5%. Likewise, the global trend for
net interest margin was at 3.3% for banks in the USA and 1.6% for
banks in the UK in the year 2016, as per the data published on the
website of the bank. Thus, it is clear that financial creditors earn
profit by earning interest on money lent with low margins,
generally being between 1 to 4%. Also, financial creditors are
capital providers for companies, who in turn are able to purchase
assets and provide a working capital to enable such companies to
run their business operation, whereas operational creditors are
beneficiaries of amounts lent by financial creditors which are then
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used as working capital, and often get paid for goods and services
provided by them to the corporate debtor, out of such working
capital. On the other hand, market research carried out by India
Brand Equity Foundation, a trust established by the Ministry of
Commerce and Industry, as regards the Oil and Gas sector, has
stated that the business risk of operational creditors who operate
with higher profit margins and shorter cyclical repayments must
needs be higher. Also, operational creditors have an immediate
exit option, by stopping supply to the corporate debtor, once
corporate debtors start defaulting in payment. Financial creditors
may exit on their long-term loans, either upon repayment of the full
amount or upon default, by recalling the entire loan facility and/or
enforcing the security interest which is a time consuming and
lengthy process which usually involves litigation. Financial
creditors are also part of a regulated banking system which
involves not merely declaring defaulters as non-performing assets
but also involves restructuring such loans which often results in
foregoing unpaid amounts of interest either wholly or partially. All
these differences between financial and operational creditors have
been reflected, albeit differently, in the judgment of Swiss
Ribbons (supra)…..”
50.2.In the relevant part, the Court found that NCLAT had fallen in grave error
in reading paragraph 77 in Swiss Ribbons de hors the earlier paragraphs. In
that context this Court said,-
“56. By reading paragraph 77 de hors the earlier paragraphs, the
Appellate Tribunal has fallen into grave error. Paragraph 76 clearly
refers to the UNCITRAL Legislative Guide which makes it clear
beyond any doubt that equitable treatment is only of similarly
situated creditors. This being so, the observation in paragraph 77
cannot be read to mean that financial and operational creditors
must be paid the same amounts in any resolution plan before it
can pass muster. On the contrary, paragraph 77 itself makes it
clear that there is a difference in payment of the debts of financial
and operational creditors, operational creditors having to receive a
minimum payment, being not less than liquidation value, which
does not apply to financial creditors. The amended Regulation 38
set out in paragraph 77 again does not lead to the conclusion that
financial and operational creditors, or secured and unsecured
creditors, must be paid the same amounts, percentage wise,
under the resolution plan before it can pass muster. Fair and
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equitable dealing of operational creditors’ rights under the said
Regulation involves the resolution plan stating as to how it has
dealt with the interests of operational creditors, which is not the
same thing as saying that they must be paid the same amount of
their debt proportionately. Also, the fact that the operational
creditors are given priority in payment over all financial creditors
does not lead to the conclusion that such payment must
necessarily be the same recovery percentage as financial
creditors. So long as the provisions of the Code and the
Regulations have been met, it is the commercial wisdom of the
requisite majority of the Committee of Creditors which is to
negotiate and accept a resolution plan, which may involve
differential payment to different classes of creditors, together with
negotiating with a prospective resolution applicant for better or
different terms which may also involve differences in distribution of
amounts between different classes of creditors.
57. Indeed, by vesting the Committee of Creditors with the
discretion of accepting resolution plans only with financial
creditors, operational creditors having no vote, the Code itself
differentiates between the two types of creditors for the reasons
given above. Further, as has been reflected in Swiss Ribbons
(supra), most financial creditors are secured creditors, whose
security interests must be protected in order that they do not go
ahead and realise their security in legal proceedings, but instead
are incentivised to act within the framework of the Code as
persons who will resolve stressed assets and bring a corporate
debtor back to its feet. Shri Sibal’s argument that the expression
“secured creditor” does not find mention in Chapter II of the Code,
which deals with the resolution process, and is only found in
Chapter III, which deals with liquidation, is for the reason that
secured creditors as a class are subsumed in the class of financial
creditors, as has been held in Swiss Ribbons (supra). Indeed,
Regulation 13(1) of the 2016 Regulations mandates that when the
resolution professional verifies claims, the security interest of
secured creditors is also looked at and gets taken care of….”
50.3.While strongly relying upon one of the observations occurring in Essar
Steel, that secured creditors as a class are subsumed in the class of financial
creditors, learned counsel for the respondents would assert that secured
creditors do become financial creditors. The submission remains untenable for
161
more than one reason. First, the submission itself proceeds on the same
shortcoming as was existing in the NCLAT’s decision that was disapproved by
this Court in Essar Steel i.e., reading of a line in a judgment disjunct from the
context. Secondly, in the decisions above-referred, this Court has never
expanded the scope of ‘financial debt’ as envisaged by Section 5(8) of the
Code. Thirdly, the case of an indirect secured creditor i.e., the person having in
its hand only the security interest over the property of the corporate debtor but
with no corresponding involvement in the finances and growth of the corporate
debtor, was never under consideration in the said decisions.
50.4.We may usefully elaborate a little. On a contextual reading of the
expositions in Essar Steel and Swiss Ribbons, it is but clear that the Court had
examined the status of direct secured creditor of the corporate debtor and
there had not been any occasion to examine the features related with an
indirect secured creditor, who is neither involved in assessing the viability of
the corporate debtor nor in lending finances to the corporate debtor for setting
up the business. As noticed, the prime, rather only, area of interest of such
indirect secured creditor is in recovery of its debt and not in reorganization of
the corporate debtor’s business. Thus understood, it is absolutely clear that
the class of secured creditors indicated by this Court in Essar Steel and Swiss
Ribbons, as being subsumed in financial creditors, is only that of such secured
creditors who are directly engaged in advancing credit to the corporate debtor
and not the indirect creditors who had extended any loan or facility to a third
162
party but had taken a security from the corporate debtor, whose resolution is
under consideration.
50.5.Hence, we are undoubtedly of the view that the decisions in Swiss
Ribbons and Essar Steel do not enure to the benefit of the respondents; rather
on the principles enunciated therein, they only operate against the
respondents.
51.The case of Smt. Kusum (supra) has also been repeatedly referred by
the respondents in support of their contentions that because of the
transactions of mortgage, the corporate debtor JIL owes them the mortgage
debt as a guarantee obligation and hence, it falls within the ambit of ‘financial
debt’ within the meaning of Section 5(8) of the Code.
51.1.We may have a close look at the relevant background aspects of the
said case of Smt. Kusum. Therein, the appellant-bank had advanced a loan to
the firm of which, husband of the respondent was the proprietor. The
respondent had executed an agreement in favour of the appellant-bank to the
effect that so long as her husband’s firm was indebted to the bank, she would
execute, by way of collateral security, a legal mortgage of the immoveable
property, being a flat belonging to her, with or without possession, in favour of
the bank within 14 days of issuance of written requisition for such execution.
Later on, when the bank called upon the respondent to execute the mortgage
as per the agreement, she declined to do so and hence, a suit for specific
performance and in the alternative for damages was filed by the appellant-
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bank. The Trial Court, however, dismissed the suit while holding, inter alia, that
the agreement in question was without consideration. The suit was dismissed
on certain other grounds too with which we are not concerned herein.
51.2. In appeal by the bank, the High Court, while holding that the
agreement to create a mortgage was specifically enforceable, proceeded to
examine the question as to whether the promise to create mortgage, if given
by a third party and not by the borrower, is for consideration and is valid. The
High Court held that by making the promise, the respondent had agreed to
provide collateral security and thereby to discharge the liability to a third party
in case of his default. The Court observed that such guarantee was limited to
the security offered and no personal liability by the promisor; and thus, the
promisor became a surety and referred to Sections 126, 127 and 128 of the
Contract Act.
51.3.With reference to Section 128 of the Contract Act, the Court pointed
out that the liability of a surety is ordinarily coextensive with that of the debtor
but in the case at hand, such liability of the surety was as otherwise provided
by the contract; and such liability of the respondent was to the extent of
securing the dues by creation of mortgage. The Court said that as the principal
debtor could create a mortgage of his immoveable property, a third person
could also agree to create a mortgage so as to secure the dues of the principal
debtor. As regards the consideration, the Court said that though no direct
consideration had flowed from the appellant to the respondent but, in such
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tripartite agreement, anything done for the benefit of the principal debtor is
sufficient consideration to the surety for giving guarantee. For their relevance,
we may notice the relevant parts of paragraphs 12,13,14,17 and 21 of the said
decision in Smt. Kusum as follows:-
“12. The next question that arises is whether such promise to
create a mortgage, if given by a third party and not by the
borrower or the principle debtor, is for consideration and is valid.
The learned trial Judge has held that for creating mortgage, the
mortgagor must be a debtor and must have right to redeem
mortgage on payment of the debt and since the present defendant
was not the debtor, she could not create a mortgage in respect of
that debt and that the mortgagor should be a debtor and there
must be a relationship of debtor and creditor, the mortgage being
a security for the debt. The learned trial Judge has also held that
there was no consideration for giving this promise of executing the
mortgage. Both these aspects are interrelated. By making the
promise by Ex. 20, defendant has agreed to provide collateral
security of a legal mortgage to secure repayment of all the
moneys due from Nitin Pharmaceuticals. Thus, the defendant has
promised to discharge the liability of a third person (the debtor) in
case of his default. This guarantee is limited to the security offered
by the promisor, namely, the mortgage and no further personal
liability is taken by the promisor. Thus, the promisor has became a
surety and this would be an agreement to offer security for due
performance of that promise and to that extent. Sections 126, 127
and 128 of the Contract Act read as follows:
*** *** ***
13. The liability of the surety is co-extensive with that of - the
debtors. However, in the present case, the liability of the surety is
as otherwise provided by the contract Ex. 20. Therefore, the
liability of the defendant is as provided in the agreement and to
that extent of securing dues by a creation of mortgage, no
personal liability is accepted by the surety. It is, therefore,
fallacious to say that the defendant is not a debtor and, therefore,
the defendant could not have created a mortgage in favour of the
creditor. The defendant has rendered himself liable to the dues of
Nitin Pharmaceuticals by agreeing to provide security in the form
of mortgage for the dues. Just as the principal debtor can create a
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mortgage of his immovable properties, a third person can also
agree to create a mortgage so as to secure the dues of the
principal debtor. In that manner, he becomes a surety to the extent
of the security or the mortgage. If that were not so, the present
commercial and banking transactions would not be possible and
would be hampered to a great extent. In the present day world of
commerce, a person may not have sufficient security to offer for
obtaining advances from financial institutions even though
satisfying the requirements. In such cases, he draws upon
resources of others by asking them to give guarantee and also
security for the performance of that guarantee and it is a perfectly
legitimated and legal way of conducting such commercial
transactions. In fact, Chapter VIII of the Contract Act deals with
indemnity and guarantee and provides for this kind of tripartite
arrangement.
14. As regards consideration, it is true that no direct consideration
has flowed from the plaintiff to the defendant who has made the
promise to create a mortgage. But in such tripartite arrangement,
anything done for the benefit of the principal debtor is a sufficient
consideration to the survey for giving guarantee as expressly
provided in Section 127 of the Contract Act. Thus, even though
there is no consideration to the third party-surety for mortgages,
the consideration of having done anything for the benefit of the
principal debtor is a sufficient consideration.
*** *** *** ***
17. In the present case, the consideration that anything done for
the benefit of the principal debtor is a sufficient consideration to
the surety. Anything done in the present case is that the loans
advanced to the principal debtor who is the husband of the
present defendant. She has agreed to give collateral security to
secure the dues in default of payment by her husband. Apart from
the close relationship of husband and wife, there is substantial
consideration by having advanced the loan.
*** *** *** ***
21. Thus, the plaintiff not enforcing the claim against the principal
debtor or even the third person may be sufficient consideration by
the debtor or third person to give security for the debt and the
consideration for such promise is that by such forbearance, the
creditor is delayed and the debtor or third party is benefited. It is
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also seen that even in absence of express promise to forbear, a
simple forbearance from enforcing the claim can be held to have
been implied in the present case. This promise and agreement
was given in 1975 and it is clear that thereafter for two years, the
claim was not pressed which shows that there is actual
forbearance against the principal debtor after this Ex. 20 was
executed. Thus, even under the English Law, this consideration is
held to be good and sufficient consideration. Under Indian Law,
which is significantly different from English Law of Contract, past
consideration or the consideration towards third person is
statutorily held to be good consideration as defined in Section 2(d)
and as mentioned in Section 127 of the Contract Act. The
observation of the learned trial Judge that as the husband of the
defendant had to pay Rs. 5 lacs to the plaintiff, the writing Ex. 20
which is subsequently obtained is without consideration, is
patently erroneous. In the present case, it is amply clear that the
principal debtor was a defaulter in meeting his financial obligations
to the bank and the bank had noticed the irregularities in his
accounts and the, bank could have proceeded against the
principal debtor to effect recovery. At that stage, at the instance of
the principal debtor-husband, wife comes forward and agrees to
give collateral security obviously to secure forbearance against
the principal debtor. Thus, at the desire of the promisor
(defendant) the bank has abstained from enforcing its claim
against the principal debtor and has forborne itself from suing the
husband. Such forbearance is sufficient and valid consideration
for the promise made by the defendant to agree to create
mortgage and give collateral security. The learned Trial Judge is in
error in observing that "an act done at the desire of third party is
not a consideration." It must, therefore, be held that the suit
agreement Ex. 20 is for sufficient and valid consideration and is
valid and enforceable.”
51.4.The said decision in Smt. Kusum, at best, leads to the position that a
promise to create a mortgage, even if given by a third party and not by the
borrower would be deemed to be for consideration; that even if no direct
consideration had flown from the plaintiff to the defendant who made the
promise to create the mortgage, anything done for the benefit of the principal
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debtor would be sufficient consideration to the surety for giving guarantee as
provided under Section 127 of the Contract Act. When the creditor abstained
from enforcing the claim against the principal debtor because of such promise
to create mortgage by the defendant, such forbearance was held to be
sufficient and valid consideration. It is difficult to stretch the ratio of the said
decision so as to be applied to the issue at hand concerning the definition of
“financial debt” under Section 5(8) of the Code, which conspicuously omits
mortgage; and which requires “disbursement” against “the consideration for
the time value of money” as the lead elements. As said, the respondent-
lenders of JAL, while holding the mortgages in their hands, as said to have
been executed by the corporate debtor JIL, may be carrying a security interest
and may be the creditors who may claim to be falling within the terminology
‘secured creditors’, yet cannot become ‘financial creditors’ of the corporate
debtor JIL who is not owing any ‘financial debt’ to them. The decision in Smt.
Kusum does not make out a case in favour of the respondents, the lenders of
JAL.
52.Another decision forming the mainstay of the respondents had been that
in the case of Rajkumari Kaushalya Devi (supra). The relevant background
aspects of the said case had been that the appellant had executed two
usufructuary mortgages with respect to the two properties situated in
Feroozepore city in favour of the respondent while also taking the same
property on lease on the very same date in 1946. On default in effecting
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payments by the appellant, the respondents filed an application under Section
13 of the Displaced Persons (Debts Adjustment) Act 70 of 1951
53
seeking
recovery of the principal amount together with arrears of rental. While omitting
other aspects which may not be relevant, noticeable it is for the present
purpose that one of the points for consideration in the case had been as to
whether the liability created under the said mortgage was a ‘debt’ within the
meaning of Section 2(6) of the Act 70 of 1951. It was contended on behalf of
the appellant that such liability under the mortgage was not a pecuniary liability
and, therefore, Section 2(6) did not apply to a mortgage debt.
52.1.The argument aforesaid was rejected by this Court after taking note
of the definition of ‘debt’ as occurring in the said enactment. The principal part
of the said definition, relevant for the present purpose read as under:-
“ ‘Debt’ means any pecuniary liability, whether payable presently
or in future, or under a decree or order of civil or revenue court
or otherwise, or whether ascertained or to be ascertained, which
—
*** *** ***”
52.2.This Court, inter alia, observed, with reference to the definition
aforesaid as occurring in Act 70 of 1951 and the definition of ‘mortgage’ as
occurring in the Transfer of Property Act, as under:
“3….The main contention of the appellant in this connection is
that a mortgage debt is not a pecuniary liability and therefore
does not fall within the definition of debt at all. We are of opinion
that there is no force in this contention. The words “pecuniary
liability” will cover any liability which is of a monetary nature.
Now the definition of a mortgage in Section 58 of the Transfer of
Property Act 4 of 1882, shows that though it is the transfer of an
53 ‘Act 70 of 1951’ for short
169
interest in specific immovable property, the purpose of the
transfer is to secure the payment of money advanced or to be
advanced by way of loan or to secure an existing or future debt
or the performance of an engagement which may give rise to a
pecuniary liability. The money advanced by way of loan, for
example, which is secured by a mortgage, obviously creates a
pecuniary liability. It is true that a mortgage in addition to
creating the pecuniary liability also transfers interest in the
specific immovable property to secure that liability; none the
less the loan or debt to secure which the mortgage is created
will remain a pecuniary liability of the person creating the
mortgage. Therefore a mortgage debt would create a pecuniary
liability upon the mortgagor and would be covered by the
definition of the word “debt” in Section 2(6)….”
52.3.The proposition aforesaid, being related with the definition of ‘debt’
as occurring in the said enactment (Act 70 of 1951), cannot have a direct
application in the present case. In any event, the said decision cannot be
taken as an authority governing the transaction where there is no direct debt of
the mortgagor himself.
53.The other citations, on various terminologies related with mercantile law
and mortgage transactions, do not advance the cause of the respondents
because of distinct and rather peculiar requirements of Section 5(8) of the
Code. Of course, the decision of NCLAT in SREI Infrastructure Finance
Limited (supra) stands disapproved for what we have held hereinabove.
Equally, the other submissions about the contents of the documents in
question as also the entitlement of respondent-lenders to invoke the security
or to take up the proceedings under SARFAESI Act etc. do not, in any event,
make the transactions in question ‘financial debts’ within the meaning of
170
Section 5(8) of the Code. Such submissions have only been noted to be
rejected.
Summation on second issue
54.For what has been discussed hereinabove, on the issue as to whether
lenders of JAL could be treated as financial creditors, we hold that such
lenders of JAL, on the strength of the mortgages in question, may fall in the
category of secured creditors, but such mortgages being neither towards any
loan, facility or advance to the corporate debtor nor towards protecting any
facility or security of the corporate debtor, it cannot be said that the corporate
debtor owes them any ‘financial debt’ within the meaning of Section 5(8) of the
Code; and hence, such lenders of JAL do not fall in the category of the
‘financial creditors’ of the corporate debtor JIL.
Conclusion
55.Accordingly, and in view of the above, these appeals are allowed to the
extent and in the manner that:
1) The impugned order dated 01.08.2019 as passed by NCLAT in the
batch of appeals is reversed and is set aside.
2) The appeals preferred before NCLAT against the order dated
16.05.2018, as passed by NCLT on the application filed by IRP, are dismissed;
and consequently, the order dated 16.05.2018 so passed by NCLT is upheld in
regard to the findings that the transactions in question are preferential within
171
the meaning of Section 43 of the Code. The directions by NCLT for avoidance
of such transactions are also upheld accordingly.
3) The appeals preferred before NCLAT against the orders passed by
NCLT dated 09.05.2018 and 15.05.2018 on the applications filed by the lender
banks are also dismissed and the respective orders passed by NCLT are
restored with the findings that the applicants are not the financial creditors of
the corporate debtor Jaypee Infratech Limited.
Acknowledgement
56.While closing on these appeals, we put on record our thanks and
compliments to the learned counsel for the respective parties as also their
associates and researchers for erudite and scholarly presentation of their
respective view-points, in oral as also in written submissions and in rendering
invaluable assistance to the Court in dealing with the vast variety of questions
involved in these matters.
………………….….J.
(A.M.Khanwilkar)
………………….….J.
(Dinesh Maheshwari)
New Delhi,
Dated: 26
th
February, 2020.
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Legal Notes
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