# In the matter of Anush Finlease & Construction Pvt Ltd.(IB)-1705(PB)-2018

> NCLT judgment dated 2020-08-04. Citation: TCN-2020-NCLT-00902. The case involves an application (IA 2057/2020) filed by the Chairman of the Monitoring…

- **Court:** NCLT
- **Order date:** 4 Aug 2020
- **Citation:** TCN-2020-NCLT-00902
- **Category:** IBC
- **Source page:** https://caseease.in/cases/ibc/nclt-chandigarh/anush-finlease-construction-pvt-ltdib-1705pb-2018-af03617b

## Summary

### Background

The case involves an application (IA 2057/2020) filed by the Chairman of the Monitoring Committee seeking directions against State Bank of India (SBI) and Director General of Foreign Trade (DGFT) for the release of Fixed Deposit Receipts (FDRs) of Anush Finlease and Construction Private Limited (AFCPL), the Corporate Debtor. The Corporate Debtor had obtained authorization for export promotion capital goods (EPCG). SBI had issued bank guarantees on behalf of the Corporate Debtor. The DGFT contends that the export obligation remains unfulfilled and that the Corporate Debtor has not submitted fulfillment of export obligation within the prescribed period. The applicant argues that the FDRs are assets of the Corporate Debtor and the Resolution Plan envisages cancellation of

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## Facts

Anush Finlease and Construction Private Limited (AFCPL), the Corporate Debtor, underwent Corporate Insolvency Resolution Process (CIRP). Phoenix ARC Pvt. Ltd. is the applicant/petitioner in the matter. The Corporate Debtor had obtained authorization for 40 export promotion capital goods (EPCG Authorization) from CLA (The Additional Directorate General of Foreign Trade). SBI issued 23 Bank Guarantees on 100% margin on behalf of the Corporate Debtor, involving a total amount of ₹1,12,72,191, which are due to mature in the years 2021 & 2022. These bank guarantees were issued in favor of Government Departments/Deputy Commissioner of Customs and the Director General of Foreign Trade. The DGFT wrote letters to SBI requesting renewal of bank guarantees. SBI refused to

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## Issues and analysis

### Issue 1: Whether the margin money (FDRs) provided against bank guarantees issued by SBI on behalf of the …

**Ratio:** Margin money provided for a bank guarantee is considered a substratum of a trust created

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**Reasoning:** The court reasoned that the FDRs are given towards margin money against the bank

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**Interpretation:** The court interpreted that margin money acquires the character of trust when it

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**Application:** The court applied the ratio to the facts by stating that since the Bank

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## Parties

- **Judges:** SH. B.S.V.…; Sh. Hemant Kumar…
- **Appellants:** Phoenix ARC Pvt.…
- **Respondents:** Anush Finlease &…; Anush Finleash &…

## Timeline

- **2018-01-01 — Case Fil…**: Filing of (IB)-1705(PB)/…
- **2019-11-20 — DGFT Letter…**: DGFT wrote letters to SBI…

## Legal provisions

- [Insolvency and Bankruptcy Code, 2016, Section 7 — Initiation of corporate insolvency resolution…](https://caseease.in/legal-provisions/insolvency-and-bankruptcy-code-2016/section-7)

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