ColumnsFinancial Bank Guarantees And Moratorium Under IBC,2016 Manu Ayilyath16 Aug 2020 1:03 AMShare This – xThe legal framework for rehabilitation of the sick industries and the corporate insolvency mechanism has witnessed enormous reformations with the advent of the Insolvency and Bankruptcy Code in 2016. The Code brought in a much more robust mechanism with strict time frames into the resolution process giving a much needed transparency and efficiency to the system. Unlike the SICA regime…Your free access to Live Law has expiredTo read the article, get a premium account.Your Subscription Supports Independent JournalismSubscription starts from ₹ 599+GST (For 6 Months)View PlansPremium account gives you:Unlimited access to Live Law Archives, Weekly/Monthly Digest, Exclusive Notifications, Comments.Reading experience of Ad Free Version, Petition Copies, Judgement/Order Copies.Subscribe NowAlready a subscriber?LoginThe legal framework for rehabilitation of the sick industries and the corporate insolvency mechanism has witnessed enormous reformations with the advent of the Insolvency and Bankruptcy Code in 2016. The Code brought in a much more robust mechanism with strict time frames into the resolution process giving a much needed transparency and efficiency to the system. Unlike the SICA regime the IBC mechanism completely removed the controlling powers of the Companies under the resolution process from its Board of Directors and transferred the same to a Resolution Professional to ensure a sincere transition and revival process. Unlike the never ending moratorium under the earlier regime, the Code also brought in a much more realistic framework with a definite time frame. Similar to the Section 22 of the SICA, the Section 14 of the IBC restrains the creditors of a Company under the Corporate Insolvency Resolution Process (CIRP) from initiating any steps for recovery of a security interest created by the Corporate Debtor while the moratorium is in force. The scope of this Moratorium has been a debatable issue from its inception. Some of these debates had germinated from the actions of the Financial Creditors in their attempt to set off the monies of the Corporate Debtor already lying with them as deposits and some had arisen from the attempts to enforce the bank guarantees issued on behalf of the corporate debtor. The question as to whether it is permissible for the lenders to proceed against the assets of the sureties to the debts of the corporate debtor has been put to rest with the incorporation of Sub Section 3(b) to Section 14 under the 2018 Amendment Act. However questions continue to arise before the courts as to the enforceability of the Bank Guarantees when the moratorium is in force. Before exploring the judicial pronouncements in this regard, it is necessary to understand the language of Section 14 of the Code. By virtue of Sub Section 1(c) of the Section 14, the Code prohibits any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property, including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. For a better understanding it is necessary to look into the fact as to how the Code has proceeded to define the term “security interest”. Section 3(31) of the Code defines Security Interest as follows: “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; Rather than the main clause of the definition, it is the proviso to this Section which is more relevant to our queries. A conjoint reading of this proviso along with the Section 14, carves out an exception for the performance guarantees from the general prohibition imposed under the moratorium. The NCLAT has, in its decision in GAIL (India) Ltd v Rajeev Mannadiar & Ors, held that the prohibition under Section 14 (1) (c) shall not include the enforcement of a Performance Bank Guarantee. The Ahmedabad Bench of NCLT had earlier proceeded to differentiate between the “Performance Bank Guarantees” and “the Bank Guarantees which are of the nature other than that of a Performance Bank Guarantees” while addressing the question of applicability of moratorium on enforcement of Bank Guarantees. In the matter of Nitin H Parikh v Madhya Gujarat Vij Company Ltd it had held that even though the moratorium passed by an Adjudicating Authority is not applicable for the Performance Bank Guarantees, the same shall be applicable to the Bank Guarantees other than those which shall come within the meaning of performance bank guarantees. Since the Code does not provide any definition for Performance Guarantee or performance bank Guarantee for that matter, we may have to resort to external sources to provide a clarity as to the difference between a Performance Bank Guarantee and non performance Bank Guarantee. In general banking parlance the Bank Guarantees can be broadly classified into Performance Bank Guarantees and Financial Bank Guarantees. RBI has in one of its Circulars differentiated between these two categories of Guarantees. In terms of this Circular, Financial Guarantees are direct credit substitutes wherein a Bank irrevocably undertakes to guarantee the repayment of a contractual obligation. Performance guarantees have been described as essentially transaction-related contingencies that involve an irrevocable undertaking to pay a third party in the event the counterparty fails to fulfil or perform a contractual non-financial obligation. However it may be an injustice to interpret the Code solely based on a classification made for a financial understanding. Both Performance Bank Guarantees and Financial Bank Guarantees, irrespective of the underlying differences related to their end use or purpose, are essentially contracts of guarantee. The Indian Contract Act defines a ‘contract of guarantee’ as a contract to perform the promise or discharge the liability, of a third person in case of his default. Taking cue from this definition a financial guarantee is involving an agreement by the Surety to perform his promise to make good the financial loss incurred by the beneficiary from the default of the principal debtor to honour his financial obligations towards the beneficiary and hence is also a performance guarantee. We will leave this point open at this juncture and shall proceed further on the two exceptions carved out for the prohibition imposed during the moratorium. As discussed earlier the Section 3 (31) creates an exception for the performance guarantees saving it from the prohibitions under the moratorium. The second exception for the moratorium is carved out under Sub Section 3(b) to Section 14 of the Code. This Sub Section provides that the prohibitions under Section 14 (1) shall not apply to a surety in a contract of guarantee to a corporate debtor. Now the question that arises in relation to our broader discussion here is that whether this exception also includes the Bank Guarantees under its ambit. The Principal Bench of NCLT in the matter of M/s Levcon Valves (P) Ltd v Energo Engineering Projects Ltd had extended this exception to the Bank Guarantees also. However, with all the due respect towards the Tribunal, such an interpretation seems to be erroneous and is moving away from the intention of the legislature. Even though the earlier BLRC Reports were silent as to its intention to carve out an exception for performance guarantees under Section 3(31), the Report of the Insolvency Law Committee dated March 26, 2018 discusses in detail as to its intention to carve out the exception for proceedings against sureties during moratorium. The Report proceeds to state as follows: “the assets of the surety are separate from those of the corporate debtor, and proceedings against the corporate debtor may not be seriously impacted by the actions against assets of third parties like sureties……… since many guarantees for loans of corporates are given by its promoters in the form of personal guarantees, if there is a stay on actions against their assets during a CIRP, such promoters (who are also corporate applicants) may file frivolous applications to merely take advantage of the stay and guard their assets” On a plain reading of the above extract from the Report, it is explicit that the intention of the Legislature was to include only the personal or corporate guarantees, provided either by the promoters or Group Companies of the Corporate debtor, as a security comfort to the lenders for the debts extended to the Corporate Debtor under the ambit of exception under Section 14(3)(b) and not the Bank Guarantees issued by the Lenders on behalf of the Corporate Debtor. Reverting to the issue as to the scope of exception under Section 3(31), we may have to examine the same in light of the implications of bringing the enforcement of financial bank guarantees under the said exception. Under the above referred RBI Circular dated 02.04.2013, the Regulator has provided an indicative list of financial guarantees. As per this indicative list a financial guarantee may be extended by a Lender to another Lender as guarantee for extending fresh credit facilities or enhancement of the existing credit facilities to a borrower. For instance on the request of a corporate Debtor ‘X’, Bank ‘A’ issues a financial guarantee to Bank ‘B’, against which Bank ‘B’ extends a credit facility to ‘X’. In such a scenario both Bank ‘A’ and Bank ‘B’ shall be essentially the financial creditors of the Corporate Debtor ‘X’. If it is presumed that the financial guarantees shall fall under the exception carved out by proviso to Section 3(31) then Bank ‘B’ will be able to enforce the financial guarantee issued by Bank ‘A’ and recover its loan extended to ‘X’ and thereby bypass the restriction otherwise imposed on it for recovery under Section 14. It is thus evident that such an inclusive interpretation shall indeed dilute the intention of the Legislature under the Code to place the creditors of the same class under a uniform footing. If the exception under Section 3(31) is extended to the Financial Bank Guarantees, a creditor holding a financial guarantee as a security of its loan will be allowed to enjoy a differential treatment and take an undue advantage in comparison to other financial creditors as to the recovery of its due. Hence it is safe to conclude that the decision of Ahmedabad Bench of the NCLT in the matter of Nitin H Parikh, is completely in consonance with the legislative intention when it had differentiated between the performance Bank Guarantees and Non Performance Bank guarantees while determining the enforceability of the Bank Guarantees during the moratorium period. Views are personal only.  CA(AT) Insolvency No 319/2018  IA 340/2017 in C.P. (I.B) No. 28/10/NCLT/AHM/2017 dated 09.02.2018  See RBI Circular on New Capital Adequacy Framework- Non-market related Off Balance Sheet Items- Bank Guarantees (RBI/2012-13/467vDBOD.No.BP.BC.89.21.04.009/2012-13 dated 02.04.2013) < https://www.rbi.org.in/Scripts/NotificationUser.aspx?Id=7924&Mode=0>  CA No 453(PB)/2017 in CP No (IB)-160(ND)/2017  < http://www.mca.gov.in/Ministry/pdf/ReportInsolvencyLawCommittee_12042019.pdf>  Supra Note 2 Subscribe to LiveLaw, enjoy Ad free version and other unlimited features, just INR 599 Click here to Subscribe. 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Man United joined by three other clubs in race for Erling Haaland Man United transfer news live: Haaland ‘wants a change’, two players off in January deals Below you can see the hilarious exchange Durham and Goughie had on the prospects of Bruce becoming Mourinho’s successor.Goughie: He knows the club, he’s a fan of the club and if he went to Manchester United and you gave it to him until the end of the season I don’t think you’d get many United fans going ‘oh not him!’Durham: Hang on. This is Manchester United we’re talking about.Goughie: Yeah; we’re talking not a rushed decision so they should get somebody in who knows the club, get him in until the end of the season to make sure they go through all the right processes to get the right manager in.Durham: When you say ‘he knows the club’, Bruce hasn’t been there for decades.Goughie: Oh, but he knows it!Durham: He knows it, what does that even mean? Can anyone who played 20 years get it? Will appointing Steve Bruce give United a chance of winning the Champions League or competing for the Premier League title?Goughie: No.Durham: Well what’s the point of appointing him then?!Goughie: Because he knows everything about Manchester United and he can do his best till the end of the season. It doesn’t mean he’ll get the job full-time. It just means Manchester United, rather than rushing, can get everything they want in a manager and take their time in getting the right man for the job. Because if now they get rid of Mourinho and get a manager in three days, is that not a rush?Durham: I’m just bewildered. Am I dreaming? Are we actually talking about Steve Bruce to Man United? 🗣 @DGoughie: “He goes in and tries to do his best until the summer…”😳 @talkSPORTDrive: “You’re actually talking about Steve Bruce to #MUFC?”What do you think #MUFC fans? 👀 pic.twitter.com/cKo2FNyuDQ— talkSPORT (@talkSPORT) October 3, 2018 Goughie believes Bruce could be a good option to manage United until the end of the season should Mourinho leave Mourinho’s status as Manchester United manager could be hanging by a thread gameday cracker 2 silverware talkSPORT’s Darren Gough believes Steve Bruce should be a candidate to succeed Jose Mourinho as Manchester United boss, should the Portuguese from the club in the near future.Mourinho has been under increasing pressure due to the Red Devils’ poor start to the season – their most recent disappointment a 0-0 draw at home to Valencia in the Champions League on Tuesday. Solskjaer gives Pogba fitness update and calls him world’s best all-round midfielder boost RANKED Top nine Premier League free transfers of the decade REVEALED Which teams do the best on Boxing Day in the Premier League era? REVEALED Boxing Day fixtures: All nine Premier League games live on talkSPORT 2 This has led to reports that his days at Old Trafford could be numbered with Zinedine Zidane the rumoured frontrunner to take over.However, Goughie suggested United could consider hiring Bruce on a temporary basis while they look for a bigger name.Bruce, who was a United player for nine years (1987-96), is currently without a job after being sacked as Aston Villa manager on Wednesday.And Goughie’s fellow Drivetime host Adrian Durham was in sheer disbelief at the prospect of Bruce at the United helm. Latest Manchester United News IN DEMAND Where Ancelotti ranks with every Premier League boss for trophies won England’s most successful clubs of the past decade, according to trophies won
Click here if you’re unable to view the photo gallery on your mobile device. Over the last five years, Draymond Green’s ability to play point forward unlocked the best of what Steve Kerr’s motion offense has to offer.With guards Stephen Curry and Klay Thompson running off pin downs and terrorizing frantic defenses, Green calmly and routinely located his teammates out of the post. Combined with a high basketball IQ, Green’s height helps him see over defenders and deliver timely passes. He’s …
As part of her image-consulting business, Pontsho Manzi works with women to build their self-esteem through empowering workshops on image management.Businesswoman, globally recognised inspirational speaker, facilitator, coach and image consultant Pontsho Manzi has a cause close to her heart: women empowerment, female unity and the forging of an authentic sisterhood that encompasses confidence, self-esteem and mutual upliftment without competition or envy.A qualified HR practitioner by training, Manzi is executive chair and CEO of Botlhokwa Group, the holding company for Recrutrain, FabImage and Bonisa Media. She is also an author, the founding editor and publisher of Fabulous Woman magazine, and the creator of South Africa’s first inspirational diary for women, Diary for Fabulous You.Passionate about female empowerment, youth development and leadership, Pontsho is also the founder of the non-profit Fabulous Girls Foundation and FabWoman Awards.In 2013 Pontsho realised there were no awards to recognise the ethical values embodied in female empowerment and unity. So she launched the Fabulous Woman Awards to celebrate the foundational principles of ethical womanhood. These are first awards in South Africa that recognise both girls and women in an effort to spread the spirit of sisterhood and cross-generational bonding to all of the country’s women.On the professional side, in 2004 Pontsho formed Recrutrain, an HR consulting and training company that delivers innovative staffing and training solutions to both private and public sector organisations in South Africa and the SADC region. During her early years of recruiting and training she saw a need to link her business with image consulting, as many candidates consulted her for advice on self-image and image management.As part of the image consulting business, she identified a need to work with women and build their self-esteem through empowering workshops on image management.The feedback from workshops propelled her to delve into the image consulting business and she in 2006 she qualified as an image consultant with the Image Academy of South Africa, a member of the Institute for Colour and Image Consultants for Men and Women in California, USA.With her business acumen, Pontsho launched FabImage in 2007 as a separate company to offer image consulting services to companies and individuals in South Africa and the SADC region. She has delivered talks to organisations and businesses that include GIBS Business School, MTN, MultiChoice, HPCSA, Old Mutual, SASRIA, Kumalo Green, Sasol, MAN, Transnet, the Department of Labour, Vodacom and Cell C.In 2009 Pontsho founded the non-profit FabGalz Foundation, with the aim of empowering young women and girls. Despite a demanding business schedule, she still coaches girls on character building, leadership skills, self-esteem, personal branding and impression management throughout South Africa. She sits on the board of VK Foundation and Young Women in Business Forum.In 2011 she created and launched an annual inspirational diary for women called Dairy for Fabulous You, produced by her newly formed publishing company, Bonisa Media. This was Manzi’s bold foray into the media world and another platform to discuss important issues that concern women.The response from women whose lives she had touched through the diary was overwhelmingly in support of a more frequent publication. So in 2012 Pontsho launched Fabulous Woman Magazine to offer inspiration to women on a quarterly basis, and was amazed by the reach the magazine gave her in her quest to address women’s issues.Through both the diary and magazine, Pontsho has come full circle back to her original purpose to encourage dialogue among women and strive for a cause close to her heart: women empowerment, women’s unity and the forging of an authentic sisterhood.A devoted Christian and philanthropist, Pontsho scooped two awards at the 2014 DTI South African Premier Business Awards: Young Entrepreneur Award and Play Your Part Award.She was also a finalist in the 2014 Women for Africa Awards: International Media Woman Category. In 2011, she was the Winner of Anne Dreyer Rising Star Award, and in 2012 a nominee for South African Most Influential Women and the Shoprite Woman of the Year Award in the Heroine Category. Pontsho was also a finalist in the Heroine Category of Feathers Awards 2013.She has featured on SABC 3, ETV, CNBC Africa, Good Morning Africa, SAfm, Radio 2000, Kaya FM and many more, and been profiled in print media publications at home and abroad.
Spalletti shadow looms for AC Milan boss Giampaoloby Carlos Volcano18 days agoSend to a friendShare the loveMarco Giampaolo is fighting for his job at AC Milan.Despite victory over Genoa this weekend, Milan coach Giampaolo’s future remains on the line.Corriere della Sera says to replace Giampaolo, the Rossoneri wants a coach who knows Serie A and has experience. The board does not want to change anything radically and for this it wants to make the right choice, with the name of Luciano Spalletti being discussed.The former Inter Milan coach is available after being squeezed out at the end of last season. TagsTransfersAbout the authorCarlos VolcanoShare the loveHave your say
Video: Dabo Swinney’s Passionate Halftime Speech To Clemson: “You Win With Class, You Lose With Class”
ESPNThings are going pretty well for Clemson down in Miami. The Tigers took a 42-0 lead into halftime, and have tacked on another three points so far in the third quarter. CU has already started benching some starters, including quarterback Deshaun Watson. Interesting, at the beginning of the break, Dabo Swinney kept his team out on the field for a few minutes before sending them to the locker room. Video shows that he was giving a passionate speech, in which he tells his team that Clemson “wins with class” and “loses with class.” We’re not sure if Swinney was just issuing a reminder with his team up big, or if something happened with the Tigers. There was a dust-up during pregame warmups between the two teams. Either way, it is definitely interesting. Here’s a link to the video from ESPN, if the embed doesn’t load for mobile users: [TheBigLead]
“Just Between You and Me” takes its name from April Wine’s first single to break into the Billboard top 20. The track off the 1981 album “The Nature of the Beast” became the group’s biggest success, selling more than a million copies in the U.S. that year and earning international platinum status. In 2008, Goodwyn was heading to a Montreal airport to catch a flight to Halifax where April Wine was headlining an event. The Woodstock, N.B.-born singer-songwriter passed out as a result of severe intoxication. The alcohol abuse led to internal bleeding and blood loss so severe he would have died within 24 hours without hospitalization. “It’s not the perfect world for me, but I’ve been very lucky, I’m very grateful. And like I say, I’m still doin’ it so it can’t be that bad,” he added, laughing. “I’m still out there doing it, and I’d miss it if I didn’t do it.”Lauren La Rose – The Canadian Press “There was one moment that changed the course of things, and for me, that was it: realizing my mortality, realizing I was dying and I didn’t know it,” recalled Goodwyn during a recent interview in downtown Toronto. Advertisement Login/Register With: April Wine frontman Myles Goodwyn has experienced his share of highs and heartaches in and out of the spotlight, but a near brush with death motivated the musician to steer towards a smoother path. “I never had the confidence. I didn’t even like my singing at all, the sound of my voice until many albums into the journey,” he admitted. “I like to be surrounded by people. I’m a very quiet person. “I was sick for a long time. I was skin and bones,” added Goodwyn, who was treated in a hospital near Montreal followed by a stint at a Toronto rehab facility. “After I was well again, I thought of how lucky I was and how grateful, and I started thinking about putting a lot of things down on paper.” “It messed up the whole family,” he recalled. “It was difficult for my dad, and there were three young boys, so it was a very dysfunctional family after that. Luckily, I had music to turn to.” Goodwyn joined forces with brothers David and Ritchie Henman and their cousin Jim Henman to form April Wine in Nova Scotia in 1969, and later relocated to Montreal. Over more than a decade, the group developed a catalogue stacked with hits including “Tonight is a Wonderful Time to Fall in Love,” “You Won’t Dance With Me” and the Hot Chocolate cover “You Could Have Been A Lady.” “Keith Richards got busted for heroin and that was big news,” he said. “Charlie Watts and Billy Wyman were private people. But (Mick) Jagger, on the other hand, was right in your face. Wonderful big smile. I find him very personable. In the opening pages of his new memoir “Just Between You and Me” (HarperCollins), an unsettling scene plays out far from the concert stage. “Watching him warm up in the afternoon, getting on this little stage, bouncing up and down, he’s a real pro. He’s in the moment always.” Facebook The memoir chronicles Goodwyn’s steady climb to stardom as the lead guitarist and vocalist of the rock group, which was inducted into the Canadian Music Hall of Fame in 2010. The book also delves into Goodwyn’s tough upbringing in rural Nova Scotia and how he coped with his mother’s death from brain cancer before he turned 11. Advertisement Among his tales of life on the road, Goodwyn recalled the band sharing the stage with the Rolling Stones in 1977 for a pair of shows at Toronto’s El Mocambo club, which were recorded by both bands for live albums. Advertisement LEAVE A REPLY Cancel replyLog in to leave a comment “When we formed April Wine … there were three singers, three musicians, and so we shared the duties, and so that was OK. But as time went on, I became more to the front of the group just because of circumstances, my writing and so forth,” he continued. While the band has experienced a revolving door of lineup changes, Goodwyn has remained the constant and continues to lead April Wine on tours. Despite his foray into solo work, he never had the desire to go it entirely alone. Twitter
Linda Evangelista with Mario Grauso, Holt Renfrew president, at a dinner held at Holt Renfrew in her honour. (GEORGE PIMENTEL) Advertisement Twitter Login/Register With: “They asked, ‘Who said, “I don’t get out of bed for less than $10K a day?”’ . . . and he screamed ‘Mommy!’ And then: ‘Linda Evangelista!’ I couldn’t believe it. He came home with the biggest prize . . . it was a miniature pool table or something. He couldn’t get it through the door!” It pays to be Linda Evangelista’s son.More than 25 years after she uttered one of the most famous lines in fashion history — “We don’t wake up for less than $10,00 a day” — she filled me in the other night in Toronto about her 11-year-old son getting wind of the wily quote not so long ago.It was when they had heard it riffed on in the animated TV series Teen Titans, of all places, and she’d had to explain it to him, shortly after which dear Augustin, her boy, serendipitously found himself in a trivia competition at the family-friendly haunt Dave & Busters. LEAVE A REPLY Cancel replyLog in to leave a comment Advertisement Facebook Advertisement
Beirut: Israel launched strikes on southern Syria late Saturday, a war monitor said, prompting air defences into action for the second night in a row. “Israeli aeroplanes fired at least three missiles from the occupied Golan,” said Rami Abdel Rahman, head of the Britain-based Syrian Observatory for Human Rights. Two of the strikes targeted a Syrian army brigade which supervises the country’s Quneitra province, he said, while the third missile was destroyed by Syrian defences. Syria’s official SANA news agency reported “foreign objects coming from the occupied territories (Israel)” which Syrian air defences were “dealing with”. The Israeli military did not comment on the reported strikes when approached by AFP. The strikes come a day after Syrian air defence systems intercepted projectiles coming from Israel, SANA reported. The “hostile targets” were fired late Friday towards Quneitra province which lies close to the Golan Heights, parts of which are annexed by Israel. Hundreds of strikes have been carried out by Israel in Syria, most of them against what it says are Iranian and Hezbollah targets. Israel says it is determined to prevent its arch foe Iran from entrenching itself militarily in Syria, where Tehran backs President Bashar al-Assad in the country’s eight-year war.
Casablanca- Five of HM King Mohammed VI’s personal bodyguards were sent back to the Royal Institute of Police in Kenitra for “professional blunders” during the monarch’s visit to Cote D’Ivoire.According to the daily Moroccan newspaper Assabah, five of the bodyguards who had accompanied the Moroccan sovereign during his recent visits to neighboring African countries were sanctioned for professional misconduct.According to the same source, the sanctioned bodyguards committed professional blunders during King Mohammed VI’s visit to the Republic of Cote d’Ivoire. The five guards worked under the command of Jaidi Aziz, head of the Security Department of the Royal Palace, who is also assumed to be among the bodyguards who were sanctioned.Many rumors have circulated concerning the absence of Jaidi among the team of bodyguards who were supposed to accompany the King to Mali.Some rumors say that Jaidi might have returned to Morocco because of health issues.According to Assabah, the National Security Directorate, led by Bouchaib Rmail, may have sent Jaidi back to his home in Rabat instead of subjecting him to the same sanctions as the other four bodyguards.