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2022 (5) TMI 1474 - Tri - Insolvency and BankruptcyMaintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Personal Guarantors to Corporate Debtors - existence of debt and dispute or not - Whether Applicant Bank neither can itself invoke the Personal Guarantee or can maintain the application under Section 95 against personal guarantor? - HELD THAT:- The deed of personal guarantee is given at pages 598-617 (Annexure A-12 of Volume-IV of the application). Perusal of the same shows that the deed of personal guarantee is executed by Mr. Manoj Gaur as Guarantor for JIL(as Borrower) in favour of the IDBI Trusteeship Services Limited(as the Security Trustee). Apparently, a trustee is appointed to hold the trust property for the benefit of the beneficiaries of the trust, who have a beneficial interest in the trust property. Where, there are multiple beneficiaries, the trustee is bound to execute the trust for the benefit of all the beneficiaries in accordance with the Trust Deed only after taking consent of other co-lenders. This clause was apparently incorporated with an intent to save the guarantor from being harassed at the hands of unscrupulous individual lender. In the matter in hand, there were other banks which extended loan facilities to corporate debtor apart from the applicant bank although it was having major share in comparison to other co-lenders. The security agreement clearly lays down Lenders shall mean collectively the refinancing lenders and the RTL facility Lenders - word "lender" herein cannot be interpreted to be used as plural, once all the lenders to be taken as collectively. Hence, all the bankers must decide together to revoke the guarantee. In the absence of the same, an individual Beneficiary (such as the Applicant Bank) was under obligation to take consent of co-lenders/beneficiaries. No doubt, the deed of personal Guarantee has been executed by Mr. Manoj Gaur, (the Respondent) in favour of IDBI Trusteeship Services Limited as the Security Trustee, but we are unable to agree with the contention raised by the Applicant Bank that IDBI can act on behalf of all the Lenders without obtaining their formal consent and it can act in place of the Security Trustee. The invocation of Personal Guarantee and the application under Section 95 can be maintained by Security Trustee as per the clause laid down in the deed of Personal Guarantee dated May, 25, 2015. The Applicant Bank neither can itself invoke the Personal Guarantee, accordingly, nor can maintain the application under Section 95 against personal guarantor Mr. Manoj Gaur - the present application under Section 95 on behalf of the applicant bank is not maintainable, accordingly, the same stands dismissed, with no order as to costs.
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