National Company Law Appellate Tribunal, New Delhi: In an appeal challenging the rejection of Section 7 application filed by the appellant-IDBI Bank on the ground that the same is barred by Section 10-A of the Insolvency and Bankruptcy Code, 2016 (IBC), a Division Bench of Ashok Bhushan,* J., (Chairperson) and Mr. Barun Mitra (Technical Member), upheld the rejection of the Section 7 application against respondent-Zee Entertainment Enterprises Ltd. (ZEE) and held that the invocation of the corporate guarantee during the Covid-19 moratorium period under Section 10-A barred the initiation of CIRP against the Corporate Debtor, even though the underlying debt continued to exist.
In the instant matter, the appellant sanctioned various Working Capital, Cash Credit Facilities in favour of Siti Networks Limited, starting with ₹25 Crores in 2008 and later enhanced to ₹150 Crores by 2012. Pursuant to this, the respondent executed a guarantee agreement on 0-.08-2012 to guarantee maintenance of the Debt Service Reserve Account (DSRA) by Siti Networks.
The borrower’s account was declared Non-Performing Asset (NPA) on 29-12-2019. The facilities were recalled on 18-02-2021 and a demand notice was served to the respondent on 05-03-2021, claiming default under the guarantee for ₹61.97 Crores. The respondent disputed liability and replied on 15-03-2021. The appellant subsequently filed Section 7 of the Insolvency and Bankruptcy Code, 2016 (IBC) on 13-12-2023, stating a default under the Working Capital Facilities and claiming ₹149.60 crores. The respondent-corporate debtor filed an Interlocutory Application praying for rejection of the application under Section 10A, which bars CIRP proceedings for defaults occurring during the COVID-19 pandemic period.
The NCLAT closely examined Clause 7, 9, 10, and 11 of the guarantee agreement and noted that the guarantor’s obligation arises only upon invocation of the demand guarantee by the lender.
“The above Clauses thus clearly indicates that lender has to make a demand and invoke the guarantee requiring the guarantor to deposit the amount in the DSRA as required by the lenders. The conclusion is inescapable that guarantee has to be invoked by the lender.”
The NCLAT noted that the appellant-IDBI Bank itself pleaded that the guarantee was invoked on 05-03-2021, falling squarely within Section 10-A period. The NCLAT affirmed observation held by the adjudicating authority that “mere existence of debt, which undoubtedly came into being at each incidence of failure to maintain DSRA balance, cannot be equated with existence of default.”
The NCLAT held that Clause 25 of the Guarantee Deed, even if relied upon by the appellant, could not override specific Clauses 7, 9, 10, and 11 which required invocation by demand. The NCLAT emphasised that “default on the part of the borrower and guarantor are different dates as per the terms of the contract between the guarantor and the lender.”
The NCLAT upheld the order of the Adjudicating Authority, rejecting the Section 7 application filed by IDBI Bank as barred under Section 10-A of the IBC. The NCLAT granted the appellant liberty to initiate fresh proceedings for defaults occurring after the expiry of Section 10-A period.
[IDBI Bank Ltd. v. Zee Entertainment Enterprises Ltd., Company Appeal (AT) (Insolvency) No. 939 of 2023, Decided on 07-04-2025]
*Judgment by Justice Ashok Bhushan
Advocates who appeared in this case :
Mr. R. Ventakraman , Mr. Diwakar Maheshwari, Ms. Pratiksha Mishra, Mr. Vishnu Sriram and Mr. Karan Bhootra, Counsel for the Appellant
Mr. Arun Kathpalia, Mr. Abhijeet Sinha, Mr. Aman Raj Gandhi, Mr. Vardaan Bajaj and Mr. Ojasni Sharma, Counsel for the Respondent
