TMI Blog2021 (6) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... is case, there are instances of defaults being on different dates and of difference amounts. Finally, such default has occurred on 8th February, 2019 in a cumulative manner. An application under Section 7 of the Code has been filed on 21st January, 2020, hence, not barred by limitation at all. Further, if we take into cognizance letter written by the Corporate Debtor on 13th September, 2019, the same amounts to promise to pay a debt barred by limitation is for squarely falls under Section 25(3) of the Indian Contract Act, 1872 r.w. Section 127 of the same Act. The provisions of Limitation Act, 1963 do not affect the provision of Section 25 of Indian Contract Act, 1872 as provided in Section 29(1) of Limitation Act, 1963. The application is otherwise complete and defect free and deserves to be admitted - application admitted - moratorium declared. - CP (IB) No. 93/7/NCLT/AHM/2020 and IA No. 882 of 2020 - - - Dated:- 2-3-2021 - Madan B. Gosavi, Member (J) And Virendra Kumar Gupta, Member (T) For the Appellant : Manish Bhatt, Learned Senior Counsel and Arjun Sheth, Learned Counsel For the Respondents : Saurabh Soparkar, Learned Senior Counsel, Vishal Dave and Nipun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Guarantee. The Corporate Debtor was liable to pay the liability of the Principal Borrower to the Financial Creditor. It was pointed that the Original Financial Creditor got merged with the Applicant. Thereafter, it was pointed out that, there was an Agreement between the Financial Creditor and the Principal Borrower on 04.05.2017, whereby payment schedule was revised, therefore, it amounted novation of the contract, hence, liability of the Corporate Debtor also stood amended. In this regard, it was emphasized that the Corporate Debtor vide its letter dated 13.09.2019 had acknowledged the said Amendment Agreement dated 04.05.2017. Thus, according, to the Learned Senior Counsel as per the Amended Agreement dated 04.05.2017, the payment as per the revised plan was also not made and this application was filed within three years there from, hence, not barred by limitation. 4. Our attention was also drawn to the balance confirmation given by the Corporate Debtor on 19.03.2018. Learned Senior Counsel further submitted that on 29.10.2018, Recall Notice was given for the payment of facility loan amount. On 08.02.2019 Corporate Guarantee was invoked. It was also contended that there we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention regarding corporate debtor's liability qua the said amendment. Taking his arguments further, the Learned Senior Counsel contended that acknowledgement of liability should be specific and explicit, wherein, intendment of such extension, in the context of dual relationship should be established. However, such letter did not contain such narration, hence, it could not be considered as acknowledgment in writing. The Learned Senior Counsel, thereafter, contended that the letter dated 13.09.2019 being signed almost two years after the expiry of limitation on 24.11.2017. Hence, it could not extend the limitation. For this proposition, Learned Senior Counsel relied upon the decision of Hon'ble Supreme Court of India in Sampuran Singh and Ors. vs. Niranan Kaur Ors. (23.02.1999) held as under: 9. In his endeavour, learned Counsel for the appellants, referred to Section 18 of the Limitation Act to hold that the acknowledgement by the original mortgagees to the respondents, through the said registered document dated 11th January 1960, the period of limitation is revive which would only start from that date of acknowledgement hence the suit filed in the year 1980 would be w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iable to be dismissed. 9. The Learned Senior Counsel, thereafter, made a plea that current applicant had no locus standi as it was not a 'Financial Creditor' within the meaning of term contemplated by the IBC 2016 because no documents to the effect of assignment of debt had been made in favour of the current application by the Original Financial Creditor though Original Lender merged with the Applicant in scheme of amalgamation. 10. Learned Senior Counsel for the Corporate Debtor, thereafter, took shelter of Section 131 of the Indian Contract Act, 1872 for the proposition that any variance in the terms of contract between the principal debtor and the creditor, discharges surety as to transactions subsequent to the variance. In the present case, the facility agreement had been extensively amended by the amendment agreement dated 04.05.2017 and, therefore, Corporate Debtor stood discharged. Plea was also taken that this Authority had no jurisdiction to entertain and dispose of this application as the Mumbai NCLT was the correct forum. For this proposition he relied on the judicial decision of PNB Vs. Essar Shipping Limited numbered as CP(IB)175/2019. Rejoinder of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or of a corporate debtor and states that any such bankruptcy proceedings shall be filed only before the National Company Law Tribunal. The argument of the learned counsel on behalf of the Respondents that bankruptcy would include SARFAESI proceedings must be turned down as bankruptcy has reference only to the two Insolvency Acts referred to above. Thus, SARFAESI proceedings against the guarantor can continue under the SARFAESI Act. Similarly, sub-section (3) speaks of a bankruptcy proceeding of a personal guarantor of the corporate debtor pending in any Court or Tribunal, which shall stand transferred to the Adjudicating Authority dealing with the insolvency resolution process or liquidation proceedings of such corporate debtor. An Adjudicating Authority , defined under Section 5(1) of the Code, means the National Company Law Tribunal constituted under the Companies Act, 2013.... The scheme of Section 60(2) and (3) is thus clear-the moment there is a proceeding against the corporate debtor pending under the 2016 Code, any bankruptcy proceeding against the individual personal guarantor will, if already initiated before the proceeding against the corporate debtor, be transferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Financial Creditor. In this regard, we have also perused the copy of the Board Resolution attached with the petition whereby authority has been given. Thus, this contention of the Corporate Debtor is rejected. Similarly, record of default as per the Information Utility is not compulsory, hence, this contention of the Corporate Debtor also fails. It is also not in dispute that the Original Financial Creditor is amalgamated with the Petitioner-Financial Creditor as per the provisions of law governing such amalgamation, hence, for this reason, the claim made by the Corporate Debtor as regards to the locus of the Financial Creditor is not valid in law, hence, rejected. Another contention which has been made regarding jurisdiction of this Bench on the basis of the fact that proceedings under IBC 2016, were pending before the NCLT, Mumbai Bench, hence, NCLT Mumbai Bench had jurisdiction to deal with this application. In this regard, we have perused provisions of Section 60(2) of the IBC 2016, which give jurisdiction in respect of Corporate Guarantee to the Bench who is seized with the Corporate Insolvency Resolution Process or liquidation process and which is pending. In this reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -6 The Guarantor hereby agree that without the concurrence of the Guarantor, the Borrower and the Lender shall be at liberty to vary, after or modify the terms and conditions of the Facility Agreement and/or any other Transaction Documents and in particular to defer, postpone or revise the payment/performance of any of the Guaranteed Obligations on such terms and conditions as may be considered necessary by the Lender, including any increase in the rate of interest. The Lender shall also be at Liberty to absolutely dispense with or release all or any of the security/securities furnished or required to be furnished by the Borrower to the Lender to secure the Guaranteed obligations in terms of the Facility Agreement. The Guarantor agrees that its liability under the Guarantee shall in no manner be affected by any such variations, alternations, modifications, waiver, dispensation with or release of security, and that no further consent of the Guarantor is required for giving effect to any such variation, alteration, modification, waiver, dispensation with, or release of security. Clause 7 The Lender shall have full liberty, without notice to the Guarantor and without in any way a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations of the Guarantor were not subject to receipt of any prior notice by the Guarantor or by the borrower and the demand or notice by the lender except in the manner provided in Clause 23 thereof. 22. Clause-19 provides with various circumstances wherein the liability of the Guarantor under this guarantee shall not be affected. Clause-23 provides as to how any demand for payment or notice under this guarantee would be communicated. 23. Clause-23 provides that period of limitation shall commence only after the notice of demand or payment is served and it is proved that envelope containing notice was posted and such posting of the notice shall be conclusive as against the Guarantor even the it was returned un-served on account of refusal of the guarantor or otherwise. For the sake of ready reference, this clause is reproduced as under: clause-23 Any demand for payment or notice under this Guarantee shall be sufficiently given if sent by post or facsimile to or left at the address specified in Schedule I hereto/the last known address of the Guarantor and shall be assumed to have reached the addressee in the course of post, if given by post, or, if sent by facsimile, or co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereafter, on 12th December, 2014, 17th January, 2015. On 12th December, 2014 Bank Guarantee has been invoked for a payment of ₹ 4,75,74,773/- towards interest over-dues (please refer paragraph No. 11 page No. 52 of reply of the Corporate Guarantor). Thereafter, on 29th December, 2018, notice has been issued wherein reference of earlier demand notices dated 13th July, 2017, 7th July, 2018, 22nd August, 2018, 28th September, 2018 has been given, whereby the borrower and corporate guarantor were asked to regularise repayment of outstanding amount. Thereafter, similar notice has been issued to the Principal borrower as well as the Corporate Debtor on 8th February, 2019, wherein, reference of above demand notices as well as other notices have been given. Thus, we find no merit in the contentions of the Corporate Debtor (Corporate Guarantor) that guarantee is barred by limitation. Because, first liability under such guarantee should accrue and become payable then only default resulting into cause of action arise from such date of default and the period of limitation would have to be counted therefrom. In this case, there are instances of defaults being on different dates and of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Limited seeking direction to be given to the Corporate Debtor not to create any third party interest or disposed of all the assets of the Corporate Debtor in any manner till the final disposal of the CP(IB) No. 93 of 2020. Hence, this application has become infructuous in view of the final disposal of the main CP(IB) i.e. 93 of 2020 as of commencement of Corporate Insolvency Resolution Process Provisions of Section 14 of the Insolvency Bankruptcy Code, 2016 would come into operation and reliefs sought in this application would automatically be applicable to the Financial Creditor. Thus, this application is dismissed and disposed of being infructuous. As a consequence of admission of main CP(IB) No. 93 of 2020, we pass following order: ORDER 1. M/s. Essar Shipping Limited., the Corporate Debtor is admitted in Corporate Insolvency Resolution Process (CIRP) under Section 7 of the Insolvency Bankruptcy Code, 2016 and the moratorium is declared for prohibiting all of the following in terms of Section 14(1) of the Code. (a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is further directed that the supply of goods/service to the Corporate Debtor Company, it continuing, shall not be terminated or suspended or interrupted during moratorium period. 7. The IRP shall be under duty to protect and preserve the value of the property of the 'Corporate Debtor Company' and manage the operations of the Corporate Debtor Company as a going concern as a part of obligation imposed by Section 20 of the Insolvency Bankruptcy Code, 2016. The Financial Creditor is directed to pay an advance of ₹ 2,00,000/- (Rupees Two lacs only) to the IRP within two weeks from the date of this order for the purpose of smooth conduct of Corporate Insolvency Resolution Process (CIRP) and IRP to file proof of receipt of such amount to this Adjudicating Authority alongwith First Progress Report. 8. The Registry is directed to communicate a copy of this order to the Financial Creditor, Corporate Debtor and to the Interim Resolution Professional and the concerned Registrar of Companies, after completion of necessary formalities forthwith and upload the same on website immediately after pronouncement of the order. 9. Accordingly, CP(IB) No. 93/7/NCLT/AHM/ ..... 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