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2017 (11) TMI 1697 - HC - Indian LawsDishonor of Cheque due to insufficiency of funds - proceedings against the guarantor - Proceedings under IBC has been initiated against the defaulter and NCLT has ordered a moratorium against the defaulter company - a decree is sought against the Defendants in the Summons for Judgment - It is the case of the Plaintiff that even though the principal borrower had agreed to secure the said term loan of ₹ 4 Crores by way of a mortgage of all the assets of the principal borrower, however, the principal borrower failed to execute the same and the Plaintiff as on the date of filing of the suit have security only in the form of a pledge of shares, which according to the Plaintiff, is not sufficient to recover its entire dues. Held that:- It is now well settled that one can initiate proceedings against the guarantor without initiating action against the principal borrower. The defences raised on merits is totally moonshine and illusory. There is no real dispute on the merits of the case. However, purely out of mercy, leave is granted to the Defendants to contest the suit subject to:- (i) The Defendants jointly and/or severally depositing in this Court the sum of ₹ 3.22 Crores within a period of Twelve weeks from today; (ii) If the aforesaid deposit is made, the Suit shall get transferred to the list of Commercial Causes and the Defendants shall file their Written Statement within a period of eight weeks from the date of deposit; and (iii) If the order of deposit is not complied with within the stipulated period as mentioned earlier, the Plaintiff shall be entitled to apply for an ex-parte decree against the Defendants after obtaining a non-deposit certificate from the Prothonotary and Senior Master of this Court. Summons for Judgement disposed off.
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