TMI Blog2018 (9) TMI 1396X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 05.09.2017 the petition was admitted. Consequently, moratorium under section 14 of the Code, 2016 was imposed. It is pertinent to mention that Respondent No. 1 Company-Corporate Debtor is engaged in the business of Engineering Procurement and Construction (EPC) services which includes customized turnkey solutions for Material Handling/Bulk Conveying, Ash Handling, Balance of Plant (BOP) Systems, operation and maintenance services for power plants and transmission/distribution of electricity. Respondent no. 1 company issued an order on 14.08.2013 to the Corporate Debtor-applicant for Ash Handling Plant-Wet Fly ash handling system etc. (Annexure-C). The total consideration was more than ₹ 9 crores and as per clause 13 of Ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Telangana State Power Generation Corporation Limited Total 199600600.00 4. In the email sent to the Resolution Professional it was further stated that as you are the Insolvency Resolution Professional in the aforesaid account and that he should provide funds for remittance of the above bank guarantees to be paid to the beneficiary. 5. Another e-mail was received by the Resolution Professional on 13.12.2017 from State Bank of India stating that as per claim request received from non applicant-respondent no. 1 for encashment of the bank guarantees they were in the process of invoking those four bank guarantees (Annexure-L). The Resolution Professional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th. 8. 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. The provisions of Section 14(3) of the Code, 2016 has been amended and the same reads as under:- Moratorium. 14. (1) Subject to provisions of sub-sections (2) and (3), on the insolvency commencement date, the Adjudicating Authority shall by order declare moratorium for prohibiting all of the following, namely:- (a) .. (b) .. (c) .. (d) .. (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that of Section 14 in that pending legal proceedings in respect of the debt and not the debtor are stayed. The difference in language between Sections 14 and 101 is for a reason. Section 14 refers only to debts due by corporate debtors, who are limited liability companies, and it is clear that in the vast majority of cases, personal guarantees are given by Directors who are in management of the companies. The object of the Code is not to allow such guarantors to escape from an independent and coextensive liability to pay off the entire outstanding debt, which is why Section 14 is not applied to them. However, insofar as firms and individuals are concerned, guarantees are given in respect of individual debts by persons who have unlimited lia ..... X X X X Extracts X X X X X X X X Extracts X X X X
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