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2022 (5) TMI 1475 - Tri - Insolvency and BankruptcyMaintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Corporate guarantor of borrower - Section 13(2) of SARFESI Act, 2002 - HELD THAT:- This is an application filed under Section 7 of the IB Code by the Financial Creditor, IDBI Bank Limited against corporate Guarantor of the Borrower to whom loan was disbursed by the applicant under Consortium funding, namely, M/s. Doshion Water Solution Private Limited (the Borrower) under the Bank of Baroda Consortium finance - On perusal of the record it appears that on 24.04.2014 the sanction letter under restructuring was issued by the applicant to the Borrower wherein corporate debtor had duly acknowledged such sanction as corporate Guarantor. The corporate debtor, by Board resolution dated 20.06.2014, had resolved to acknowledge guarantee for credit facilities upto Rs. 408.64 crores and further resolved for issuance of requisite deeds of guarantee. Corporate debtor had executed deed of guarantee dated 27.06.2014 in favour of the security trustee who had acted as an agent on behalf of all Banks/lenders under Consortium funding. As per clause No. 7 & 9 of guarantee agreement, such guarantee would be enforced as if corporate debtor was principal debtor to the lenders. As per clause 8, such guarantee of corporate debtor was continuing and such guarantee of corporate debtor is irrevocable and enforceable notwithstanding any dispute between Borrower and lenders. Further clause 18 makes guarantee deed executed by corporate debtor independent and distinct from any other security agreement. Subsequently, the Borrower and corporate debtor had executed the revival letter dated 07.03.2017 acknowledging the debt. As per said revival letter, the corporate debtor had acknowledged the entire outstanding debts in terms of section 18 of Limitation Act - It is settled legal position that application under Section 7 of IBC is not a recovery proceeding. Therefore, in terms of clause 7.5 of inter-se agreement dated 26.11.2013, any lender is at liberty to take any decision or action on any other matter and is not required to take any approval from any other lender, the applicant would not be restricted to take independent recourse. As per clause 4 of inter-se-agreement dated 26.11.2013, the rights and obligations of each lender are joint and several thereby meaning in absence of contractual obligation by any other lender, the applicant would not be restricted to take independent recourse. As per Part IV, Form I, the date of default being NPA date is 30.04.2016 and application is filed on 26.10.2018, which is within the period of limitation and not barred by law - the registered office of the corporate debtor is situated in Ahmedabad, Gujarat State and, therefore, this Tribunal has jurisdiction to entertain and try this application. The present application is complete in terms of Section 7(5) of the Code. The applicant is entitled to claim its dues, establishing the default in payment of the financial debt beyond doubt. In light of the facts and records the present application is admitted and CIRP is ordered to be initiated against corporate debtor. Petition admitted - moratorium declared.
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