Home Case Index All Cases Insolvency and Bankruptcy Insolvency and Bankruptcy + AT Insolvency and Bankruptcy - 2022 (2) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (2) TMI 966 - AT - Insolvency and BankruptcyWithdrawal of the CIRP against the Principal Borrower - bar for the Respondent/Lender in initiating fresh CIRP against the Guarantor or not - HELD THAT:- It is a well settled preposition in Law that the creditor is not bound to exhaust his/its remedy against the Principal Borrower before invoking the Guarantor or suing the Guarantor for payment of outstanding sum(s), (unless otherwise agreed to in the Guarantee Deed). A suit can be maintained against the Guarantor for payment of outstanding sums in connection with the Loan extended to the Borrower even if the Borrower itself has not been sued by the Lender. This Tribunal is of the considered opinion that the Lender has an independent access to the Guarantor issued by the Principal Borrowers. Therefore, this Tribunal holds that withdrawal of Section 7 Petition filed under the IBC Code, 2016 against the Principal Borrower is not a fetter in initiating CIRP against the Guarantor in accordance with Law. This Tribunal finds force in the contention of the Learned Counsel for the Respondent that the withdrawal of the proceedings was brought to the notice of the Adjudicating Authority as the Order copies are part of the record before the Learned Adjudicating Authority. It is not in dispute that the Principal Borrower had committed default in repayment of the outstanding Financial Debt and the Tripartite Guarantee Agreement executed by the Appellant/Corporate Debtor in favour of the Respondent evidences the liability of the Appellant herein to pay the amounts due and payable - A Perusal of the Sanction Letters to the Principal Borrowers establishes that the credit facilities was executed towards meeting working capital requirements and it cannot be said that Respondent/Lender has only a security interest towards the Corporate Debtor. At the cost of repetition, the Appellant herein stood as a Guarantor and stepped into the shoes of the Principal Debtor and viewed from any angle it cannot be construed that Lender has only a security interest over the assets of the Corporate Debtor. This Tribunal comes to an irresistible and inescapable conclusion that the Appellant being the Corporate Guarantor of the two Principal Borrowers viz. M/s. Roshni Jewellers Pvt. Ltd. and M/s. J.B. Gold Pvt. Ltd., is liable to pay the amounts in question. Accordingly, this Tribunal holds that mere withdrawal of the CIRP against the Principal Borrower will not be a bar for the Respondent/Lender in initiating fresh CIRP against the ‘Guarantor’ who is the Appellant herein - Appeal dismissed.
|