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2021 (10) TMI 698 - CALCUTTA HIGH COURTRemoval of names of the petitioners from the list of wilful defaulters - whether the writ petitioners being the promoter / directors of a company as well as guarantors to the loan facility can be classified as wilful defaulters even after the company is absolved of its liability? - HELD THAT:- The Wilful Defaulters Review Committee in its meeting held on August 27, 2020, after considering the written representations submitted by the writ petitions and the department’s response thereto, passed an order that the promoters/ directors of TCL i.e. the petitioners herein are fit to be declared as wilful defaulters. It was specifically observed by the said Review Committee that despite the fact that operations of the committee were allowed through TRA account only, the borrower has routed substantial transactions through non TRA accounts which is diversion of funds and violation of CDR terms and falls under the criteria of wilful default - The company operates through its directors. The directors, who are in charge of the affairs of the company are responsible for diversion of funds. Thus, in case a company is held guilty of diversion of funds the company as well as its directors can be classified as Wilful Defaulters. Though the company is absolved of its liability through corporate resolution process and the board of directors are removed from the board of the said company, such directors would still be liable in case they have furnished personal guarantee to the loan facility extended to the company. The directors being at the helm of the affairs of a company are responsible for diversion of funds. Whether the contractual obligations between the financial creditor and the surety are obliterated or modified or suspended by the eventual outcome of a proceeding under Section 7 of the IBC, 2016? - HELD THAT:- It is now well settled that the corporate Debtor in a proceeding under the IBC, 2016 may stand discharged of its liability to its creditors but such discharge does not absolve the surety of its liability - A co-ordinate bench of this Hon’ble Court in Gouri Shankar [2019 (11) TMI 1169 - CALCUTTA HIGH COURT] after considering the provisions of Section 31 of the IBC, 2016 observed that the contractual obligations between the financial creditor and the surety are not obliterated or modified or suspended by the eventual outcome of a proceeding under section 7 of the IBC. This Court is of the view that the writ petitioners who were the guarantors to the loan facility extended to the company and have defaulted in repayment can be classified as wilful defaulters even after the company is absolved of its liability. This Court is of the view that the names of the writ petitioners cannot be removed from the list of wilful defaulters merely on the ground that the company is absolved of its liability as the petitioners have furnished personal guarantees to the loan facility extended by the respondent. The order of the Review Committee does not suffer from any infirmity. Appeal dismissed.
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