M.M. Kumar, C.J. - (1.) This is an application filed by ICICI Bank Ltd. u/s. 60(5) of the Insolvency & Bankruptcy Code 2016 (for brevity of the Code). The prayer made in the application is that the decision of the Resolution Professional, (C.A. Ms. Ritu Rastogi) dated 6.9.2017 rejecting the claim of the applicant be set aside by directing her to admit its entire claimed amount arising out of Edu Smart Services Pvt. Ltd. (for brevity 'KSSL') Guarantee-'the Corporate Debtor' by treating it as a 'financial debt.' A further prayer has also been made for issuance of direction to the Resolution Professional - non applicant to allow the applicant to join as a Member of the Committee of the Creditor and grant it proportionate voting share in the COC. A restrained order against the Resolution Professional - non-applicant has also been sought so that she may not act upon any decision taken or approval given by the Committee of the Creditor in furtherance of the CIRP of the Corporate Debtor till the final decision of the present application.
(2.) Brief facts of the case necessary for disposal of the controversy raised in this application are that the 'Financial Creditor' namely DBS Bank Ltd. being one of the lenders filed an application under section 7 of the Code 2016 against the Corporate Debtor namely 'ESSL'. That application was admitted on 27.06.2017 and moratorium under section 14 of the Code was declared. The Resolution Professional - non applicant was firstly appointed as IRP and then as Resolution Professional to conduct the Corporate Insolvency Resolution Process.
(3.) The Applicant ICICI Bank from time to time extended credit facilities to Edu Camp Solution - a company other than the 'ESSL'- which amounted to Rs. 76,20,00,000/- (Rs. Seventy Six Crores Twenty lakhs only). The ESSL-Corporate Debtor furnished a guarantee in favour Applicant-ICICI in addition to other lenders. The agreement for guarantee was executed on 25.03.2014 and 31.03.2014. Later on 03.05.2016 the ESSL-Corporate Debtor amended the originally executed guarantees and executed a fresh guarantee deed in favour of the Security Trustee i.e. (SBI Cap Trustee Company Ltd.) which acted on behalf of the applicant. The ESSL, inter alia undertook to unconditionally and irrevocably guarantee for the repayment of loan to the lenders including the Applicant - ICICI. The allegation made by the applicant is that on account of default committed by the Edu Comp Solution in repayment of its loan the Applicant-ICICI addressed a letter of invocation of guarantee to ESSL-Corporate Debtor on 29.5.2017 calling upon it to honour their obligation in accordance with the terms of guarantee agreement. As already stated above DBS bank has filed an application under section 7 of the Code which was admitted on 27.06.2017.;