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2016 (2) TMI 1102 - HIGH COURT OF DELHISettlement arrived at by the appellant in his capacity as guarantor without the leave of the court - whether the appellant paid the money to the secured creditor i.e. Punjab & Sind Bank only to save his personal immovable property from coercive action? - Held that:- The appellant in his capacity as the guarantor paid the debt, which was owed by the company (in liquidation). The OL, in fact, was aware of the appellant’s involvement as is evident from the communication dated 30.11.2006 addressed to the Asst. O.L, which is appended as Annexure-D to the appeal. As a matter of fact, in the meeting held in the office of the OL, on 22.9.2011, these aspects squarely came to fore when, payments made by the appellant to Punjab & Sind Bank i.e. the secured creditor, were noted. A perusal of the minutes dated 22.09.2011 would show that, amongst others, Mr Sanjay Yadav, Dy. O.L. was present at the said meeting.A perusal of order dated 26.08.2011 would show that the date of appearance of ex-directors before the OL and the chartered accountant was changed from 29.08.2011 to 22.09.2011, which is when, the meeting was held and the minutes were drawn up. The argument that the OL was unaware of the payments made by the appellant i.e. the ex-director is, according to me, not tenable. Second, the submission of Mr Choudhary is equally unsustainable for the reason, which is, that irrespective of the motivation for payment of debts of the company (in liquidation), once, moneys are paid by the appellant, he should be allowed to take recourse to its assets. The principal debtor being the company (in liquidation), and the appellant having paid its creditor (i.e. the Punjab & Sind bank), it falls to reason that it should be entitled to seek recovery by lodging its claim with the OL. Appeal allowed.
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