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2021 (3) TMI 1044 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP against Corporate Debtor and Corporate Guarantor - Corporate Debtor has committed default in paying the financial debt - pre-existing dispute or not - Declaration of principal borrower's loan account to be NPA - Allegation that Financial Creditor did not comply the provision of Section 215 of the IBC, 2016 - Maintainability of application under Section 7 of IBC, 2016 against the guarantors for selfsame debt and its default, once the principal borrower is admitted in CIRP - Proper authorization of officer who had filed this application on behalf of bank - HELD THAT:- In this case, there is no dispute about following relevant facts (i) Financial debt is more than ₹ 1 lakh due and payable by these Corporate Debtors upon invocation of their guarantees by the bank, (ii) Corporate Guarantors committed default in paying the same and (iii) debt is not time barred. Declaration of principal borrower's loan account to be NPA - HELD THAT:- A debt may not be due if it is not payable in law or in fact. The moment the adjudicating authority is satisfied that a default has occurred, the application must be admitted unless it is incomplete, in which case it may give notice to the applicant to rectify the defect within 7 days of receipt of a notice from the adjudicating authority. Under sub-section (7), the adjudicating authority shall then communicate the order passed to the financial creditor and corporate debtor within 7 days of admission or rejection of such application, as the case may be" - the defence raised by the corporate guarantor about non-observing guideline issued by RBI by the Financial Creditor cannot be the defence to be considered in this proceedings - It is not recovery proceedings, hence, rejected. Allegation that Financial Creditor did not comply the provision of Section 215 of the IBC, 2016 - HELD THAT:- Section 215 of IBC, 2016 states the procedure of submitting financial statements of the debtor to Information Utility Service Provers. However, atleast till date, it is not necessary for the Financial Creditor to file certificate of default issued by Information Utility for initiating CIRP of the Corporate Debtor - Financial Creditor can prove the facts i.e. debt is due and payable and its defaults by way of other evidence also. In above case, there is overwhelming evidence to establish both facts. Even otherwise both facts are not in dispute - this defence rejected. Maintainability of application under Section 7 of IBC, 2016 against the guarantors for selfsame debt and its default, once the principal borrower is admitted in CIRP - HELD THAT:- Upon reading of entire order of Hon'ble NCLAT in case of State Bank of India. Vs. Athena Energy Ventures Pvt. Ltd. [2020 (11) TMI 800 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , NEW DELHI] , it is clear that Hon'ble NCLAT has considered its earlier order and amendment made in Section 60(2)(3) of IBC, 2016 so also the decision of Hon'ble Supreme Court in the case of State Bank of India vs V. Ramakrishnan and Another [2018 (8) TMI 837 - SUPREME COURT] and has ultimately held that CIRP proceedings against the principal borrower and guarantor can be proceeded with and there is no bar in IBC, 2016 against such proceeding - this defence as raised by the Corporate Debtor (corporate guarantor) is not maintainable. Proper authorization of officer who had filed this application on behalf of bank - HELD THAT:- These proceedings are filed on the basis of power of attorney are not maintainable. The officer presenting the application is not the Financial Creditor but it is the bank who is Financial Creditor. Since debt and default are admitted by the Corporate Debtor, it is not deemed proper to reject these applications on this technical ground more particularly when we are dealing with the matter pertain to commercial/economic law where huge public money is involved. The Corporate Debtor are required to be admitted in CIRP - application admitted - moratorium declared.
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