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2017 (7) TMI 110 - NATIONAL COMPANY LAW TRIBUNAL, AHMEDABADPetition under Section 7 of The Insolvency and Bankruptcy Code, 2016 - Held that:- The Guarantee is a continuing Guarantee. There was a demand for payment on 10.10.2012 itself. There was a refusal on the part of the Respondent by revocation of Guarantee on 30th March, 2010 and by giving Reply on 1.11.2012. Therefore, period of limitation starts running either from 30th March, 2010 or from 1.11.2012, but not from 27.2.2017 as stated in the Written Arguments of the learned counsel for the Petitioner. Looking to the facts of this case, Petitioner Bank having kept quiet for 2 ˝ years without initiating any proceeding against Respondent after the revocation of the Guarantee Agreement, on the verge of limitation, filed OA No. 242/2013 against the Respondent Company. Thereafter, Petitioner Bank remained silent till notice was issued on 13.2.2017 with a view to trigger Insolvency Resolution Process. Even at the cost of repetition, it may be stated that the Petitioner Bank already made a claim before the Liquidator appointed in the winding up proceedings against the Principal Borrower. Of course, that may not be a ground for the Bank not to proceed against the Guarantor if Guarantee is enforceable. But the intermittent actions that are being taken up by the Petitioner Bank shows that it chose to have a chance remedy under the Code by suppressing the material facts including the revocation of Guarantee Agreement dated 14.1.2008. The incomplete record placed by the Petitioner Bank amounts to misleading also. Coming to suppression of material facts, except the Petitioner's saying that proceedings before DRT are pending, it did not choose to file any papers relating to the proceedings before DRT. Petitioner totally suppressed the Suit filed by the Respondent before the High Court of Colombo. Petitioner having knowledge about revocation of Bank Guarantee, did not disclose about the same. Inspite of direction given by this Authority on 17.5.2017 to parties, Petitioner not filed documents relating to proceeding before DRT. Petitioner shall file the copies of Entries in Bankers' Book in accordance with the Bankers' Books Evidence Act. In these set of facts, and in the light of controversy on limitation aspect and in view of bona fide substantial pleas raised by Respondent as long back in 2010, 2011 and 2013 in earlier proceedings, it is not just to record satisfaction of the authority regarding existence of default or occurrence of default in respect of liability, if any, and obligations, if any, that may or may not arise under the Guarantee Agreement dated 14.1.2008 determined on 30.3.2010. This Adjudicating Authority is of the view that there is no occurrence of default. This petition is rejected.
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