Case Overview

This Interlocutory Application (IA No. 3929/2025) was filed by Omkara Assets Reconstruction Private Limited (substituted in place of original applicant ICICI Bank Limited) against Mr. Neehal M. Pathan, the Resolution Professional (RP) for the project-wise Corporate Insolvency Resolution Process (CIRP) of Rohan Developers Private Limited (Corporate Debtor) concerning its '7 Hughes Project'. The application sought directions for the RP to admit the applicant's claim of Rs. 3,27,46,97,722/- as a secured financial creditor and include it in the Committee of Creditors (CoC).

The dispute originated from a complex financing arrangement. On 29.03.2016, ICICI Bank sanctioned two Rupee Term Loan facilities aggregating Rs. 175 crores to Indo Global Soft Solutions and Technologies Private Limited (IndoGlobal) for the construction and development of real estate projects, including the '7 Hughes Project' (then referred to as Project Ajinkya) and Project Pathare. A Joint Development Agreement (JDA) was executed on 12.04.2016 between the Corporate Debtor, IndoGlobal, and tenants, wherein IndoGlobal provided refundable deposits to the Corporate Debtor, funded by the bank loan. Part of this loan (Rs. 90 crores) was utilized by the Corporate Debtor to repay its existing liabilities.

The Corporate Debtor, via a Board Resolution dated 29.03.2016, resolved to guarantee the repayment obligations of IndoGlobal (the borrower) to ICICI Bank. An Indenture of Mortgage (IoM) dated 12.04.2016 was executed, wherein the Corporate Debtor, as mortgagor, undertook to pay amounts demanded by the bank upon default by IndoGlobal. The JDA (Clause 9.6) also explicitly required a 'Corporate Guarantee of RDPL' (Rohan Developers Private Limited).

Following IndoGlobal's default and classification of the account as a Non-Performing Asset (NPA) on 14.02.2020, a Deed of Cancellation (DoC) was executed on 23.02.2022, terminating the JDA. Pursuant to the DoC, the Corporate Debtor agreed to take over all liabilities of IndoGlobal towards the bank loan, amounting to Rs. 176.97 crores, thereby assuming principal liability. This transfer of liability was upheld by the NCLT Mumbai Bench-IV vide order dated 13.12.2023 in IA No. 4073/2023, filed in the CIRP of IndoGlobal. The Corporate Debtor further acknowledged this assumed liability in its audited financial statements for FY 2023-2024. ICICI Bank, vide letter dated 14.03.2024, informed the Corporate Debtor of the transfer of liabilities from IndoGlobal, followed by a demand notice dated 06.09.2024.

The RP had admitted the applicant's claim but categorized it as a 'secured other creditor', arguing that there was no direct disbursement to or borrowing by the Corporate Debtor, a prerequisite for being a financial creditor under the Insolvency and Bankruptcy Code (IBC), 2016.

The Tribunal's analysis centered on interpreting the Corporate Debtor's undertakings. It referred to the Hon'ble Supreme Court's judgment in China Development Bank v. Doha Bank Q.P.S.C., which held that the nomenclature of a document is not decisive, and a guarantee creating an obligation to perform the promise of a third person in case of default qualifies as a financial debt under Section 5(8)(i) of the IBC. The Tribunal found that the language in the Board Resolution and the IoM (Clause 43), wherein the Corporate Debtor undertook to pay the bank upon demand in case of IndoGlobal's default, constituted a guarantee. Furthermore, the subsequent assumption of liability under the DoC, acknowledged in financial statements and upheld by a previous NCLT order, solidified the applicant's status as a financial creditor.

Final Outcome

The Tribunal allowed the application. It held that Omkara Assets Reconstruction Private Limited is a financial creditor of Rohan Developers Private Limited. The Resolution Professional was directed to admit its claim of Rs. 3,27,46,97,722/- as a secured financial creditor in the CIRP of the '7 Hughes Project' and take consequential steps to include it in the Committee of Creditors. The IA was disposed of with no order as to costs.

Topics: Insolvency Proceedings, Financial Creditor Status, Corporate Guarantee