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2018 (9) TMI 2132 - NATIONAL COMPANY LAW TRIBUNAL, MUMBAIMaintainability of application - Whether the Insolvency Application can be Admitted against the Co-obligor where the CIRP against the Principal Borrower is already commenced? - HELD THAT:- This Petition/Application is filed much before the passing of Resolution Plan or any Order for Liquidation in the case of Principal Borrower hence, as regards to the submissions made by the Learned Advocate for the Debtor/Co-obligor about Discharge of Surety it is worth to place on record the legal position that, the surety is discharged as soon as the Principal Borrower is discharged from his liabilities. It is noticed that in the Insolvency Proceedings the discharge of the liabilities of Principal Borrower happens at the time of approval of Resolution Plan and the Debt of the Principal Borrower is not discharged in absence of the Resolution Plan in the case of Principal Borrower. And therefore the provisions of the S. 134 of the Indian Contract Act, 1872 cannot be applied upon the Debtor/Co-obligor. If the Resolution Plan got approved in the case of Principal Borrower, then, in that case the Debt would have been Discharged. But here the case is not so. Since the Debtor/Co-obligor is a co-obligor to the VIL he is bound to fulfil an obligation of the VIL. Further VIL is not a Third Party to the Debtor/Co-obligor thus jointly to be called as "Guarantor" to the Principal Debtor/Co-obligor. The Bench is also acquainted with the decision of this very Bench in the case of Schweitzer Systemtek India Private Limited [2017 (8) TMI 1678 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] wherein it was held that the Moratorium is only applicable to the assets of the Debtor/Co-obligor and not to the assets of the Guarantors - And also with the decision of this very Bench in the case of Bell Finvest (India) Limited v. Asha's Hospitality and Management Facility Private Limited wherein this Bench has Admitted the Insolvency Application against the Corporate Guarantor and also against the Principal Borrower. There is no cause for dissenting from the co-ordinate Benches and therefore this Petition/Application deserves to be Admitted - Application admitted - commencement of the Corporate Insolvency Resolution Process shall be effective from the date of receipt of the certified copy of this Order.
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