MAITREYA DOSHIversusANAND RATHI GLOBAL FINANCE LTD. AND ANR.

536                      [2022]REPORTS
               SUPREME COURT   15 S.C.R. 536               [2022] 15 S.C.R.


A                             MAITREYA DOSHI
                                        v.
           ANAND RATHI GLOBAL FINANCE LTD. AND ANR.
                         (Civil Appeal No. 6613 of 2021)
B                            SEPTEMBER 22, 2022
          [INDIRA BANERJEE AND J. K. MAHESHWARI, JJ.]
              Insolvency and Bankruptcy Code 2016 – ss.7, 62 – Corporate
      Insolvency Resolution Process – Respondent No. 1, a NBFC-
      Financial Creditor disbursed loan to the tune of Rs.6 Crores to M/
C     s Premier Ltd. – Doshi Holdings pledged shares held by it in Premier,
      in favour of the Financial Creditor, by way of security for the loan
      – Premier failed to make repayments – Financial Creditor called
      upon Premier and Doshi Holdings, to pay the entire outstanding loan
      amount – Premier admitted and acknowledged its liability to pay its
      outstanding dues, but stated that it could not pay the same on account
D     of genuine difficulty – Financial Creditor filed petition u/s.7 for
      initiation of CIRP against Premier for default in repayment – On the
      same day, the Financial Creditor also filed a petition against Doshi
      Holdings u/s.7 in respect of the same claim, based on the same loan
      documents – NCLT admitted the petitions – NCLAT dismissed the
E     appeal against the admission of petitions by NCLT – On appeal, held:
      Loan-cum-Pledge Agreements were executed by both Premier and
      Doshi Holdings and Doshi Holdings has been referred to in the
      agreement as borrower and pledgor – The interpretation given by
      NCLAT that Doshi Holdings is a borrower is definitely a plausible
      interpretation which cannot be interfered with in an appeal under
F     s.62 of the IBC – A pledgor per se may not be a Financial Debtor but
      NCLAT arrived at a factual finding that Disha Holdings was a
      borrower – The approval of a resolution in respect of one borrower
      cannot certainly discharge a co-borrower – If there are two borrowers
      or if two corporate bodies fall within the ambit of corporate debtors,
G     there is no reason why proceedings under s.7 of the IBC cannot be
      initiated against both the Corporate Debtors – The same amount
      cannot be realised from both the Corporate Debtors – If the dues
      are realised in part from one Corporate Debtor, the balance may be
      realised from the other Corporate Debtor being the co-borrower –
      Once the claim of the Financial Creditor is discharged, there can
H     be no question of recovery of the claim twice over.
                                       536
  MAITREYA DOSHI v. ANAND RATHI GLOBAL FINANCE                          537
                  LTD. AND ANR.

      Dismissing the appeal, the Court                                  A
      HELD: 1. Prima facie, it appears that Doshi Holdings was
a party to the Loan-cum-Pledge Agreement in its dual capacity of
borrower and pledgor of shares. The Appellate Authority has
arrived at the factual finding that Doshi Holdings is also a borrower
under the Loan-cum-Pledge Agreement. The factual finding of             B
the Appellate Authority which was the final fact finding authority
ought not to be interfered in this appeal. [Paras 32 and 33][545-
C-D]
       2. The finding of the Appellate Authority that Doshi
Holdings is a borrower, is based on its interpretation of the Loan-     C
cum-Pledge Agreements and supporting documents. The
interpretation given by the Appellate Authority is definitely a
possible interpretation. The interpretation is a plausible
interpretation which cannot be interfered with in an appeal under
Section 62 of the IBC. It is true, that contract of indemnity,
contract of guarantee and pledge are not one and the same. The          D
contract of indemnity is 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 a
contract of indemnity, a promisee acting within the scope of his
authority is entitled to recover from the promisor all damages          E
and all costs which he may incur. A contract of guarantee, on the
other hand, is a promise whereby the promisor promises to
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 the principal
debtor and the person to whom the guarantee is given is the             F
creditor. 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. On the other hand, the bailment of goods
as security for payment of a debt or performance of a promise is
a pledge. [Paras 34 and 35][545-E-H]                                    G
       3. The proposition of law which emerges from the judgment
is that a pledgor per se may not be a Financial Debtor. However,
in this case, the Appellate Authority arrived at a factual finding
that Disha Holdings was a borrower. In Lalit Kumar Jain v. Union
                                                                        H
538           SUPREME COURT REPORTS                     [2022] 15 S.C.R.


A     of India, this Court held that the approval of a resolution plan in
      relation to a Corporate Debtor does not discharge the guarantor
      of the Corporate Debtor. On a parity of reasoning, the approval
      of a resolution in respect of one borrower cannot certainly
      discharge a co-borrower. If there are two borrowers or if two
      corporate bodies fall within the ambit of corporate debtors, there
B
      is no reason why proceedings under Section 7 of the IBC cannot
      be initiated against both the Corporate Debtors. Needless to
      mention, the same amount cannot be realised from both the
      Corporate Debtors. If the dues are realised in part from one
      Corporate Debtor, the balance may be realised from the other
C     Corporate Debtor being the co-borrower. However, once the
      claim of the Financial Creditor is discharged, there can be no
      question of recovery of the claim twice over. [Paras 36 and
      37][546-B-D]
            Lalit Kumar Jain v. Union of India (2021) 9 SCC 321 :
D           2021 (5 ) JT 545 – relied on.
            Anuj Jain, Interim Resolution Professional for Jaypee
            Infratech Limited v. Axis Bank Limited and Others
            (2020) 8 SCC 401 : [2020] 8 SCR 291; Phoenix ARC
            Pvt. Ltd. v. Ketulbhai Ramubhai Patel (2021) 2 SCC
E           799 : 2021 (2) JT 526; Bharat Barrel & Drum
            Manufacturing Company v. Amin Chand Payrelal (1999)
            3 SCC 35 : [1999] 1 SCR 704; Sub-Inspector Rooplal
            & Another v. Lieutenant Governor and Others (2000)
            1 SCC 644 : [1999] 5 Suppl. SCR 310 – referred to.

F                           Case Law Reference
      [2020] 8 SCR 291                 referred to           Para 14
      [1999] 1 SCR 704                 referred to           Para 22
      [1999] 5 Suppl. SCR 310          referred to           Para 25
G           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6613
      of 2021.
            From the Judgment and Order dated 25.08.2021 of the National
      Company Law Appellate Tribunal, New Delhi in Company Appeal (AT)
      (Insolvency) No. 191 of 2021.
H
   MAITREYA DOSHI v. ANAND RATHI GLOBAL FINANCE                              539
                   LTD. AND ANR.

     K.V. Viswanathan, Sr. Adv., Ms. Dhanyashree Jadeja, Ankit Lohia,        A
Manas Kotak, Ms. Kanika Tandon, R. Venkataraman, Chanakya
Dwivedi, Samiron Borkataky, Advs. for the Appellant.
      Prateek Sakseria, Saket Mone, Vishesh Kalra, Nishant Chottani,
Smriti Churiwal, Jaiveer Kant, Ms. Priyashree Sharma Ph., Ms. Rushali
Agarwal, Syed Faraz Alam, Kush Chaturvedi, Advs. for the Respondents.        B
      The Judgment of the Court was delivered by
      INDIRA BANERJEE, J.
       This appeal under Section 62 of the Insolvency and Bankruptcy
Code 2016, hereinafter referred to as the ‘IBC’, is against a Judgement
                                                                             C
and Order dated 25th August 2021, passed by the National Company
Law Appellate Tribunal (NCLAT), dismissing the Company Appeal (AT)
(Insolvency) No. 191 of 2021 filed by the Appellant, against an order
dated 19th February 2021, passed by the Adjudicating Authority (National
Company Law Tribunal), NCLT, Mumbai Bench admitting a Company
Petition C.P. (IB) No. 1220/MB/2020 filed by the Respondent No. 1 -          D
Anand Rathi Global Finance Limited as Financial Creditor, for initiation
of the Corporate Insolvency Resolution Process (CIRP) of M/s Doshi
Holdings Pvt. Ltd., hereinafter referred to as “Doshi Holdings”, under
Section 7 of the IBC. The Appellant is a suspended Director of Doshi
Holdings.
                                                                             E
       2. The Respondent No 1, a Non-banking Financial Company,
hereinafter referred to as the “Financial Creditor” disbursed loan to the
tune of Rs.6 Crores to M/s Premier Limited, hereinafter referred to as
“Premier” under three separate Loan-cum-Pledge Agreements, dated
29 th June 2015, 4th May 2016 and 5th October 2016, respectively.
According to the Appellant, Doshi Holdings pledged shares held by it in      F
Premier, in favour of the Financial Creditor, by way of security for the
loan.
       3. According to the Appellant, the Loan-cum-Pledge Agreements
contemplated two distinct transactions under one document, that is, grant
of loan to Premier, and creation of pledge by Doshi Holdings of securities   G
held by the Doshi Holdings in Premier.
      4. Premier failed to make repayments in terms of the Loan-cum-
Pledge Agreements. The Financial Creditor, therefore, called upon
Premier to repay its outstanding dues of Rs.7,64,60,360/- on diverse
dates between 28th June 2019 and 10th February 2020.                         H
540            SUPREME COURT REPORTS                        [2022] 15 S.C.R.


A           5. By a communication dated 14th February 2020, the Financial
      Creditor called upon Premier and Doshi Holdings, also described as the
      borrower under the Loan-cum-Pledge Agreements, to pay the entire
      outstanding loan amount.
            6. By a letter dated 19th February 2020, Premier admitted and
B     acknowledged its liability to pay its outstanding dues to the Financial
      Creditor under the Loan-cum-Pledge Agreements, but stated that it could
      not pay the same on account of genuine difficulty.
            7. On 21st September 2020, the Financial Creditor filed a petition
      under Section 7 of the IBC being C.P.(IB) No.1224/MB/2020 for initiation
C     of CIRP against Premier for default in repayment of Rs. 8,35,25,398/-.
            8. On the same day, the Financial Creditor also filed a petition
      against Doshi Holdings, under Section 7 of the IBC, for initiation of
      CIRP in respect of the same claim of Rs. 8,35,25,398/-, based on the
      same loan documents.
D            9. Both the petitions filed by the Financial Creditor were heard
      together by the Adjudicating Authority (NCLT). By an order dated 29th
      January 2021, the Adjudicating Authority (NCLT) admitted the petition
      for initiation of CIRP against Premier. By another Order passed on 19th
      February 2021, the Adjudicating Authority (NCLT) admitted the petition
      for initiation of CIRP against Doshi Holdings for the same set of loans
E
      arising out of the same loan documents, in respect of which the Financial
      Creditor had initiated CIRP against Premier.
           10. The Appellant filed an appeal in the National Company Law
      Appellate Authority (NCLAT) under Section 61 of the IBC. By the
      impugned judgment and order dated 25th August 2021, the Appellate
F     Authority (NCLAT) dismissed the appeal and upheld the order of
      admission of the petition under Section 7 of the IBC.
            11. Mr. K.V. Vishwanathan, learned Senior Counsel appearing on
      behalf of the Appellant submitted that no amount under the Loan-cum-
      Pledge Agreements was disbursed by the Financial Creditor to Doshi
G     Holdings. The Financial Creditor granted loans to Premier. The loans
      were disbursed to Premier. Doshi Holdings did not utilize any part of the
      money disbursed by the Financial Creditor under the Loan-cum-Pledge
      Agreement.
           12. According to Mr. Vishwanathan, the Loan-cum-Pledge
H     Agreements were standard form agreements in which Premier was the
      MAITREYA DOSHI v. ANAND RATHI GLOBAL FINANCE                            541
            LTD. AND ANR. [INDIRA BANERJEE, J.]

borrower and Doshi Holdings the pledgor. For convenience, the borrower        A
and the pledgor have collectively been referred to as borrowers and
individually referred to as borrower or pledgor. The Appellant executed
the Loan-cum-Pledge Agreement and other related documents on behalf
of Premier and Doshi Holdings, because the Appellant had independently
and separately been authorised by Premier and Doshi Holdings to execute
                                                                              B
the documents. The fact remains that Doshi Holdings and Premier are
separate entities.
       13. Mr. Vishwanathan argued that since no disbursement has been
made to Doshi Holdings against consideration for the time value of money,
there was no obligation on the part of Doshi Holdings to make any
repayment to the Financial Creditor. There was, therefore, no financial       C
debt owed by Doshi Holdings to the Financial Creditor under Section
5(8) of the IBC. Insofar as Doshi Holdings is concerned, the Loan-cum-
Pledge Agreements only created a pledge of the shares of Doshi Holdings
in Premier in favour of the Financial Creditor. The petition under Section
7 of the IBC against the Corporate Debtor was clearly not maintainable.       D
       14. In support of his argument, Mr. Vishwanathan, cited Anuj
Jain, Interim Resolution Professional for Jaypee Infratech Limitedv.
Axis Bank Limited and Others1, where this Court held :-
         “46. ...essential element of disbursal, and that too against
         the consideration for time value of money, needs to be found         E
         in the genesis of any debt before it may be treated as “financial
         debt” within the meaning of Section 5(8) of the Code....”
       15. Mr. Vishwanathan next argued that the Adjudicating Authority/
Appellate Authority erred in arriving at the finding that Doshi Holdings
was a borrower and hence liable to make repayment in respect of the           F
loan disbursement to Premier. He submitted that the loan was never
utilised by Doshi Holdings.
       16. Mr. Vishwanathan argued that it was not in dispute that no
amount was disbursed to Doshi Holdings. Having accepted the factual
position, that no amount had been disbursed to Doshi Holdings, the            G
Adjudicating Authority/Appellate Authority erred in arriving at the finding
that Doshi Holdings was a borrower. The petition under Section 7 of the
IBC was not maintainable against Doshi Holdings.

1
    (2020) 8 SCC 401                                                          H
542               SUPREME COURT REPORTS                      [2022] 15 S.C.R.


A            17. Mr. Vishwanathan argued that the Adjudicating Authority/
      Appellate Authority misconstrued the expression “financial debt” in
      Section 5(8) of the IBC and/or failed to appreciate the scope and ambit
      of the said expression. The definition of ‘financial debt’ in Section 5(8)
      of the IBC does not include a pledge.
B            18. Mr. Vishwanathan submitted that “Contract of Indemnity”,
      “Contract of Guarantee” and “Pledge” have been defined in the Indian
      Contract Act, 1872. The expressions are different from one and another
      in terms of their ramification and implication and they cannot be equated.
      Distinguishing between the expressions, contract of indemnity, contract
      of guarantee and pledge, Mr. Vishwanathan argued that creation of pledge
C     of shares of the Corporate Debtor did not and cannot amount to a
      guarantee and/or indemnity under Section 5(8) of the IBC.
            19. Mr. Vishwanathan cited Phoenix ARC Pvt. Ltd. v. Ketulbhai
      Ramubhai Patel2, where this Court, relying upon Anuj Jain (supra)
      held that where a Corporate Debtor had only extended security by
D     pledging shares, the applicant (Respondent) would at best be the secured
      debtor qua the security but, not a Financial Creditor within the meaning
      of Sections 5(7) and 5(8) of the IBC.
             20. Mr. Vishwanathan argued that the Adjudicating Authority
      (NCLT) interchangeably referred to Doshi Holdings as a co-borrower/
E     guarantor under the Loan-cum-Pledge Agreement, losing sight of the
      difference in the liability of a pledgor from that of a guarantor.
            21. Mr. Vishwanathan submitted that the Appellate Authority failed
      to appreciate that the execution of a promissory note gives rise to a
      presumption that such promissory note is supported by consideration.
F     The presumption is, however, rebuttable.
          22. Mr. Vishwanathan cited Bharat Barrel & Drum Manufacturing
      Company v. Amin Chand Payrelal3, where this Court held :-
               “12. Upon consideration of various judgments as noted
               hereinabove, the position of law which emerges is that once
G              execution of the promisory note is admitted, the presumption
               under Section 118(a) would arise that it is supported by
               consideration. Such a presumption is rebuttable. The
               defendant can prove the non-existence of a consideration by
      2
          (2021) 2 SCC 799
      3
H         (1999) 3 SCC 35
      MAITREYA DOSHI v. ANAND RATHI GLOBAL FINANCE                            543
            LTD. AND ANR. [INDIRA BANERJEE, J.]

         raising a probable defence. If the defendant is proved to have       A
         discharged the initial onus of proof showing that the existence
         of consideration was improbable or doubtful or the same was
         illegal, the onus would shift to the plaintiff who will be obliged
         to prove it as a matter of fact and upon its failure to prove
         would disentitle him to the grant of relief on the basis of the
                                                                              B
         negotiable instrument.....”
       23. Mr. Vishwanathan pointed out that the interpretation clause in
the agreement stated that Premier and Doshi Holdings were collectively
referred to as the borrowers and individually as a borrower or pledgor.
Mr. Vishwanathan submitted that the expressions borrower and pledgor
had to be read in the context of the obligation of the parties under the      C
Loan-cum-Pledge Agreement.
      24. Mr. Vishwanathan finally argued that the Adjudicating Authority
had passed its order dated 19th February 2021, impugned in this appeal,
ignoring its earlier finding pronounced in open Court on 29 th January
2021, which is as follows :-                                                  D
         “25...However, under Section 7, if the claim against Premier
         Limited (Corporate debtor herein) is “Admitted” then for the
         same set of loans, arising under the same loan documents,
         the same debt/claim against Doshi will not be permissible...”
                                                                              E
       25. Mr. Vishwanathan submitted that the order of admission was
contrary to judicial discipline. Relying on the judgment of this Court in
Sub-Inspector Rooplal & Another v. Lieutenant Governor and
Others4, Mr. Vishwanathan argued that in the event, if any, Member of
the Bench was of the opinion that earlier view taken by another Member
of the same Bench was incorrect, the matter should have been referred         F
to a larger Bench to avoid difference of opinion.
      26. Mr. Prateek Sakseria, learned counsel appearing on behalf of
the Respondent submitted that Doshi Holdings was party to the Loan-
cum-Pledge Agreements in its dual capacity as co-borrower and pledgor
which had pledged its shares in Premier in favour of the Financial            G
Creditor. Mr. Sakseria emphasised on the fact that the Appellant had
signed documents on behalf of Doshi Holdings in its capacity as co-
borrower. The Appellant was Director of both, Premier and Doshi
Holdings.
4
    (2000) 1 SCC 644                                                          H
544                SUPREME COURT REPORTS                       [2022] 15 S.C.R.


A           27. Mr. Sakseria referred to the following documents:-
            (i)      Letter of Sanction dated 27th June 2015, 4th May 2016 and
                     5th October 2016.
            (ii)     Loan-cum-Pledge Agreement dated 29th June 2015.
B           (iii)    Loan-cum-Pledge Agreement dated 4th May 2016.
            (iv)     Loan-cum-Pledge Agreement dated 5th October 2016.
            (v)      Loan Receipts acknowledging the receipt of Rs.6,00,00,000/-.
            (vi)     Demand Promissory Note unconditionally promising to pay
                     to the Financial Creditor.
C
             28. Mr. Sakseria pointed out that both Premier and Doshi Holdings
      have been described as borrowers in the Loan-cum-Pledge Agreements.
      Mr. Sakseria also pointed out that Doshi Holdings had acknowledged
      receipt of monies disbursed under three loan agreements by executing
      loan receipts. Doshi Holdings had also issued demand promissory note
D
      unconditionally promising repayment of loan to the Financial Creditor.
      The loan agreements, receipts and demand promissory notes have been
      signed by the Appellant in his capacity as the authorised signatory/Director
      of Doshi Holdings and Premier. After Premier defaulted in payment of
      loan, demand notice was issued to Doshi Holdings to repay the loan in its
E     capacity as co-borrower.
            29. Mr. Sakseria argued that the definition of financial debt
      contemplates a disbursal against consideration for time value of money,
      and not a disbursal necessarily to the Corporate Debtor. Otherwise, an
      amount payable under a guarantee could never have been included
F     inasmuch as amounts are never disbursed to a guarantor, but he is liable
      for debts of another.
            30. Mr. Sakseria further argued that the definition of Corporate
      Debtor does not require as a pre-condition that monies should have been
      disbursed to the Corporate Debtor. The sine qua non for an entity to be
G     considered as a Corporate Debtor is that such person/entity should owe
      a debt to any person and not that a disbursal has to be made to such a
      person/entity.
            31. Mr. Sakseria submitted that Doshi Holdings satisfies the
      aforesaid criteria inasmuch as it is a Co-Borrower in terms of the Loan
H     Agreement under which monies have been borrowed by both Premier
   MAITREYA DOSHI v. ANAND RATHI GLOBAL FINANCE                                 545
         LTD. AND ANR. [INDIRA BANERJEE, J.]

and Doshi Holdings. Both Premier and Doshi Holdings have executed               A
loan receipts admitting receipt of loan amounts and demand promissory
notes unconditionally promising to pay the monies borrowed to the
Financial Creditor for value received.
      32. The mere fact of it also being a pledgor is wholly irrelevant
and does not in any manner disentitle the Respondent No.1 to initiate           B
proceedings under Section 7 of the IBC against such a co-borrower.
       33. It is not in dispute that the Financial Creditor disbursed loan to
the tune of Rs.6,00,00,000/- to Premier pursuant to the Loan-cum-Pledge
Agreements referred to above, executed both by Premier and by Doshi
Holdings. Doshi Holdings has been referred to in the agreement as               C
borrower and pledgor. Prima facie, it appears that Doshi Holdings was
a party to the Loan-cum-Pledge Agreement in its dual capacity of
borrower and pledgor of shares. The Appellate Authority has arrived at
the factual finding that Doshi Holdings is also a borrower under the
Loan-cum-Pledge Agreement. The factual finding of the Appellate
Authority which was the final fact finding authority ought not to be            D
interfered in this appeal.
       34. The finding of the Appellate Authority that Doshi Holdings is
a borrower, is based on its interpretation of the Loan-cum-Pledge
Agreements and supporting documents. The interpretation given by the
Appellate Authority is definitely a possible interpretation. In our view,       E
the interpretation is a plausible interpretation which cannot be interfered
with in an appeal under Section 62 of the IBC.
       35. It is true, as argued by Mr. Vishwanathan that contract of
indemnity, contract of guarantee and pledge are not one and the same.
The contract of indemnity is a contract by which one party promises to          F
save the other from loss caused to him by the conduct of the promisor
himself or by the conduct of any other person. In a contract of indemnity,
a promisee acting within the scope of his authority is entitled to recover
from the promisor all damages and all costs which he may incur. A
contract of guarantee, on the other hand, is a promise whereby the
                                                                                G
promisor promises to 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 the principal
debtor and the person to whom the guarantee is given is the creditor.
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.       H
546               SUPREME COURT REPORTS                        [2022] 15 S.C.R.


A     On the other hand, the bailment of goods as security for payment of a
      debt or performance of a promise is a pledge.
             36. The proposition of law which emerges from the judgment is
      that a pledgor per se may not be a Financial Debtor. However, in this
      case, as observed above, the Appellate Authority arrived at a factual
B     finding that Disha Holdings was a borrower. In Lalit Kumar Jain v.
      Union of India5, this Court held that the approval of a resolution plan in
      relation to a Corporate Debtor does not discharge the guarantor of the
      Corporate Debtor. On a parity of reasoning, the approval of a resolution
      in respect of one borrower cannot certainly discharge a co-borrower.
C           37. If there are two borrowers or if two corporate bodies fall
      within the ambit of corporate debtors, there is no reason why proceedings
      under Section 7 of the IBC cannot be initiated against both the Corporate
      Debtors. Needless to mention, the same amount cannot be realised from
      both the Corporate Debtors. If the dues are realised in part from one
      Corporate Debtor, the balance may be realised from the other Corporate
D     Debtor being the co-borrower. However, once the claim of the Financial
      Creditor is discharged, there can be no question of recovery of the claim
      twice over.
            38. We find no grounds to interfere with the impugned judgment
      and order of the Appellate Authority. The appeal is, accordingly, dismissed.
E

      Devika Gujral                                               Appeal dismissed.
      (Assisted by : Deepak Panwar, LCRA)




F




G




      5
H         (2021) 9 SCC 321