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2018 (9) TMI 1396 - Tri - Insolvency and BankruptcyCorporate insolvency process - Held that:- The application has been opposed by filing a counter affidavit on behalf of non applicant-respondent no. 1. A precise submission made in the counter affidavit is that the encashment of the bank guarantees is dependent on an independent agreement and therefore, it is a lawful act permissible in law. The Corporate Insolvency Resolution Professional pending before us relates to the applicant-Energo Engineering Projects Limited. The answering respondent has not been a party to the same. The bank guarantees has already been encashed and the amount stood transferred to the bank account of respondent no. 1 on 16.12.2017. The application in any case has been rendered infructuous. Having heard the learned counsel for the parties and perusing the pleadings with their able assistance we are of the view that the application would not warrant acceptance. The question of law raised in the instant application would not survive for consideration as the Legislation itself has taken care of the situation like the one in hand. Provision would make it patent that moratorium would not apply to a surety in a contract of guarantee to a Corporate Debtor. It is therefore evident that Section 14(1) of the Code, 2016 would not come in the way of the non applicant-respondent no. 1 to encash the bank guarantee. When the aforesaid principles are applied to the facts of the present case it becomes evident that the performance guarantee furnished by State Bank of India and Bank of Maharashtra would not enjoy the benefit of moratorium as envisaged under Section 14 of the Code, 2016 and therefore, those guarantees have been rightly invoked. There is thus no doubt left that the interim order dated 08.03.2018 would also stand vacated. As a sequel to the above discussion, this application fails and the same is dismissed. In the peculiar facts and circumstances of this case the parties are left to bear their own cost.
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