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2022 (10) TMI 1013 - Tri - Insolvency and BankruptcyInitiation of CIRP - corporate guarantor - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - Contract of guarantee - surety - whether letter of comfort allegedly issued by the respondent/corporate debtor amounts to contract of guarantee? - HELD THAT:- The said letter of comfort, which is undated, without seal and authorization on behalf of the respondent-company, cannot be termed as letter or contract of guarantee, particularly in presence of the corporate guarantee on behalf of Strawberry Star India P. Ltd., as mentioned in the sanction letter dated 22.08.2017. In a contract of guarantee, there are three different entities i.e. i) ‘surety’ ii) ‘principal debtor’ and iii) ‘creditor’. In the case in hand, the said letter of comfort cannot be termed as letter of contract of guarantee because it is neither signed by the creditor nor by the borrower and to the contrary, the sanction letter dated 22.08.2017 is signed by all the three i.e. creditor, borrower and guarantor. More so, there is no evidence placed on record to show that the said letter of comfort was signed in pursuance of any resolution passed by the Board of Directors of the respondent/corporate debtor. Thus, it can be safely said that the said letter of comfort, if any, issued, is not in conformity with the provisions of Section 179(3)(f) and Section 185 of the Companies Act, 2013. The present respondent/corporate debtor, taken from any angle, cannot be termed as a corporate guarantor on the basis of alleged letter of comfort. Therefore, the present petition is not maintainable against the respondent/corporate debtor and the same is dismissed on the ground of maintainability - Petition dismissed.
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