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2022 (3) TMI 1425 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Seeking resolution of an unresolved Financial Debt - Corporate Debtor failed to make repayment of its dues - Financial Creditors - letter of guarantee executed by the Corporate Debtor is insufficiently stamped or not - letter of guarantee fall under the definition of guarantee as defined under Section 126 of the Indian Stamp Act, or not - existence of debt and dispute or not. Sufficient stamping or not - HELD THAT:- Similar issue fell for consideration before the Division Bench of the Hon'ble Bombay High Court headed by Hon'ble Chief Justice, Manjula Chellur, and Hon'ble Justice M.S. Sonak, J. in Classic Diamonds Vs. ICICI Bank [2016 (11) TMI 1703 - BOMBAY HIGH COURT] while dealing with a winding up petition has held that If that stamp duty is not paid, according to the appellant, the document cannot be admitted in evidence, and cannot be acted upon. We fail to understand this stand of the appellant in the present Appeal, since we are not concerned with the insufficiency of stamp duty payable on documents of corporate guarantee, but we are concerned with the issue whether the appellant Company deserves to be wound up or not - thus, the issue of stamp duty raised by the Corporate Debtor is not legally sustainable and is liable to be rejected. Validity of the letter of guarantee - HELD THAT:- The contention of the Corporate Debtor to the effect that there was no consent of the principal borrower to the letter of guarantee executed by Corporate Debtor has no force of law. It is also appropriate to mention here that the Financial Creditor had issued a recall notice dated 30.07.2018 to the principal borrower as well as the Corporate Debtor and another personal guarantor Mr. Rishi Agarwal which was duly received by them. The Corporate Debtor having received the said notice did not raise any objection nor sent any reply disputing the liability and therefore the Corporate Debtor is stopped from raising all the above pleas in this Company Petition. Value of pledged shares and other securities - HELD THAT:- It is not the case of the Corporate Debtor that the pledged shares have been sold by the Financial Creditor. The pledged shares are claimed to have been transferred in the name of Financial Creditor and the Financial Creditor is exercising certain voting rights under the transferred shares. It is settled proposition of law that the proceedings before the NCLAT are in the nature of "resolution" and not for "recovery." It is not the case of the Corporate Debtor that the amount due and payable to the Financial Creditor is less than the threshold limit for admitting the Section 7 Application. This Bench is of the considered opinion that none of the above please raised by the Corporate Debtor pass the test of legal scrutiny and are liable to be rejected - the existence of "debt" and "default" in this case are proved beyond doubt and the above Company Petition being filed on 18.06.2019 is well within period of limitation from the date of sanction of the loan as well as the recall notice invoking the guarantee. The present Company Petition satisfies all the necessary legal requirements for admission - Petition admitted - moratorium declared.
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