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2019 (8) TMI 1866 - HC - Indian LawsSeeking stay of the present suit proceedings - suit is barred by time limitation or not - suit under Order XXXVII CPC not being for a liquidated sum is maintainable or not - entitlement to unconditional leave to defend - main borrower i.e. Defendant No.1 is facing insolvency proceedings under the IBC - moratorium pending - complaint under Section 138 of the Negotiable Instruments Act, 1888 also filed - HELD THAT:- The entire purpose of FRA, 2011 and the amendment to the CPC would be defeated, if lenders like the Plaintiff are not given the benefit of summary procedure. The suit under Order XXXVII CPC is within limitation and is maintainable as it is for an ascertainable and a liquidated sum. The amount for which recovery is sought is Rs. 32,02,90,309.32 along with pendente lite and future interest at 13% p.a. The liability of Defendant No.2, under the Guarantee is a sum of Rs. 10 crores along with interest and other charges. The terms of the Guarantee are clear that the liability is independent of the Principal borrower. None of the defences or grounds raised are either tenable, nor is evidence required to be recorded. The Factoring agreement is admitted, the execution of guarantee is admitted and the money disbursed by the Plaintiff is also admitted. The issuance of cheques for a sum of Rs.10 crores by Defendant No. 1 is also admitted. In the facts and circumstances of the present case, Defendant No.2 would not be entitled to any leave to defend insofar as the sum of Rs. 10 crores, which is a liquidated sum as per the guarantee, is concerned. Insofar as any other charges or expenses are concerned, the Plaintiff is free to file its claims before the NCLT against Defendant no.1, the principal borrower. Application disposed off.
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