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2020 (3) TMI 1132

..... at the account of the ‘Corporate Debtor’ ‘Gee Pee Infotech Pvt. Ltd.’ (Principal Borrower) was declared ‘Non Performing Asset’ - scope of ‘Claim and Default’ primarily committed by the Principal Borrower - section 7 of the ‘I&B’ Code - HELD THAT:- It is not in dispute that the ‘Corporate Debtor’ (Being Corporate Guarantor of the Principal Borrower ‘Gee Pee Infotech Pvt. Ltd.) had executed the Guarantee Deed on 05.10.2011 in respect of overall Limit and sanctioned in favour of the ‘Financial Creditor’. Also that a supplementary Guarantee Deed was executed between ‘Corporate Guarantor’ & and the ‘Financial Creditor’ - As per Section 145 of the Indian Contract Act, 1872 in every ‘contract of ‘Guarantee’, there is an implied promise by the ‘Principal Debtor’ to indemnify the ‘Surety’. This court pertinently points out that a ‘Financial Debtor’ includes Debt owed to the Creditor by both the Principal and the Guarantor. Section 3(11) of ‘I&B’ Code refers to a sum that it is due from any person inclu .....

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..... djudicating Authority ( National Company Law Tribunal )Kolkata Bench wherein the application filed by the 1st Respondent / 2 Bank / Financial Creditor on 02.08.2019 at para 34 and 35 had observed the following:- 34 Having heard the Ld. Counsel for the parties and on perusal of the records containing documents filed by the rival parties, we are of the considered view that since the Financial Creditor has rightly filed this petition under section 7 of the Insolvency & Bankruptcy Code against M/s. Genegrow Commercial Pvt. Ltd., the present Corporate Guarantor having executed the deed of guarantee and Supplementary Deed of guarantee, ensuring and guaranteeing the repayment of loan facilities/total outstanding as on 31st January, 2018 to the tune of ₹ 162,62,23,609.63 outstanding against Gee Pee Infotech Pvt. Ltd., the Principal Borrower, both the deed of guarantees being irrevocable and unconditional and shall be enforceable. The Financial Creditor has also placed on record the balance confirmation by the Principal Borrower admitting the default to the tune of ₹ 84,53,923.50 as on 7th April, 2014 which is also reflected in the CIBIL Report. Since the accounts of the Pri .....

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..... Debtor M/s. Genegrow Commercial Pvt. Ltd. for the same set of Claim and Default primarily committed by the Principal Borrower. 4. The Learned Counsel for the Appellant contends that the Learned Adjudicating Authority ( National Company Law Tribunal ) Kolkata had admitted the claim based on the fact that the Principal Borrower had admitted the claim and had no defence, initiated Corporate Insolvency Resolution Process against the Principal Borrower and Corporate Guarantor. In this connection, it is the stand of the Appellant that the Learned Adjudicating Authority while admitting the claim had failed to appreciate that the liability of the Principal Borrower and the Guarantor is co-extensive for the purpose of recovery. 5. The Learned Counsel for the Appellant point out that the I&B proceedings is not a recovery proceedings and relies upon the decision Binani Industries Limited Vs. Bank of Baroda & Anr. (CA)(AT)(Ins.) No. 82/2018 at para 17 wherein it is observed that the IBC is not a Recovery proceeding. 6. The Learned Counsel for the Appellant cites the decision Dr. Vishnu Kumar Agarwal Vs. M/s. Piramal Enterprises Ltd. in Company Appeal (AT)(Ins.) No. 346 and 347 of 2018 .....

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..... efore, accrues when a default occurs. If the default has occurred over three years prior to the date of filing of the application, the application would be barred Under Article 137 of the Limitation Act, save and except in those cases where, in the facts of the case, Section 5 of the Limitation Act may be applied to condone the delay in filing such application. 8. The Learned Counsel for the Appellant refers to the decision of Hon ble Supreme Court in the case of Gaurav Hargovindbhai Dave Vs. Asset Reconstruction Company (India) Ltd. & Anr. (in Civil Appeal No. 4952/2019 dated 18.09.2019) wherein at para No.6 it is observed and held as under:- 6. Having heard the learned counsel for both sides, what is apparent is that Article 62 is out of the way on the ground that it would only apply to suits. The present case being an application which is filed under Section 7, would fall only within the residuary article 137. As rightly pointed out by learned counsel appearing on behalf of the appellant, time, therefore, begins to run on 21.07.2011, as a result of which the application filed under Section 7 would clearly be time-barred. So far as Mr. Banerjee s reliance on para 7 of B.K. Ed .....

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..... of I&B Code. 12. The Learned Counsel for the 1st Respondent contends that the issue of Limitation was neither raised by the Corporate Debtor nor by the Appellant before the Adjudicating Authority ( National Company Law Tribunal ) Kolkata and, therefore, the Appellant is estopped from taking this plea before this Tribunal. 13. The Learned Counsel for the 1st Respondent cites the judgement dated 22.11.2019 in Company Appeal (AT)(Ins.) No. 672/2019 reported in MANU/NL/0558/2019 in the matter of Sesh Nath Singh and Ors. Vs. Baidyabati Sheoraphuli Cooperative Bank Ltd. & Ors. wherein at para 10 it is observed as under:- 10. A notice was issued on 20.03.1997 to the respondent invoking the personal guarantee given by him and calling upon him to pay the sum of ₹ 5.40 crores together with further interest and liquidated damages from 1.1.1997 till repayment. 14. The Learned Counsel for the 1st Respondent relies on the order dated 06.09.2017 Sanjeev Shaye & Ors. V. State Bank of India & Ors. reported in MANU/UP/2243/2017 wherein it is reiterated that the rights of the surety is coextensive with that of Principal Debtor. 15. A perusal of the application by the 1st Respond .....

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..... d 13th June, 2018 is arbitrary, besides being contrary to law and statute and is devoid of any merits. So also we do not find any merit in the contention that the applicant filed the instant application on the strength of a circular which was declared as non-est by the Hon ble Supreme Court and therefore initiating CIRP as against the corporate debtor is against the proposition held in the above cited decision is found devoid of any merit. 18. It is not in dispute that the Corporate Debtor (Being Corporate Guarantor of the Principal Borrower Gee Pee Infotech Pvt. Ltd.) had executed the Guarantee Deed on 05.10.2011 in respect of overall Limit and sanctioned in favour of the Financial Creditor . Also that a supplementary Guarantee Deed was executed between Corporate Guarantor & and the Financial Creditor . 19. As per Section 145 of the Indian Contract Act, 1872 in every contract of Guarantee , there is an implied promise by the Principal Debtor to indemnify the Surety . This court pertinently points out that a Financial Debtor includes Debt owed to the Creditor by both the Principal and the Guarantor. Section 3(11) of I&B Code refers to a sum that it is due from any person in .....

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..... rate Debtor Gengrow Commercial Pvt. Ltd. being the Corporate Guarantor of the Principal Borrower viz. Gee Pee Infotech Pvt. Ltd. for the very same debt/claim it is impermissible. Viewed in that perspective, this Tribunal comes to a consequent conclusion that the Application u/s 7 of the I&B Code filed by the 1st Respondent/Bank/ Financial Creditor against the Corporate Debtor Gengrow Commercial Pvt. Ltd. is not maintainable in law and the same is accordingly dismissed but without costs. 24. The order passed by the Adjudicating Authority in appointing the Interim Resolution Professional , declaring moratorium etc. and actions, if any, taken by the Interim Resolution Professional against the present Appellant/ Corporate Debtor namely M/s. Gengrow Commercial Pvt. Ltd. are declared illegal and they are set aside. The Resolution Professional is directed to hand over the Records and Assets of the Corporate Debtor to the Promoter / Directors of the Corporate Debtor immediately. 25. The Learned Adjudicating Authority namely National Company Law Tribunal , Kolkata will now close the proceeding of the case in CP (IB) No. 353/KB/2018 and that the Corporate Debtor M/s. Genegrow Commercial .....

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