TMI Blog2021 (9) TMI 1115X X X X Extracts X X X X X X X X Extracts X X X X ..... ent case, the Financial Creditor is not seeking the recovery of the amount which has already been recovered under resolution plan and this fact has remained un-controverted. There are no merit in any of the allegations made by the Corporate Debtor as regard to malicious initiation of CIRP against the Corporate Debtor in filing of application under Section 7 of IBC, 2016 - application admitted - moratorium declared. - CP (IB) No. 141/7/NCLT/AHM/2019 and IA 513 of 2019 - - - Dated:- 16-8-2021 - M.B. Gosavi, Member (J) And Virendra Kumar Gupta, Member (T) For the Appellant : Ankit Lohia, Vikram Trivedi and Anip Gandhi, Learned Counsels For the Respondents : Diwakar Maheshwari, Moiz Rafique and Shreyas Edupuganti, Learned Counsels ORDER Virendra Kumar Gupta , Member (T) 1. CP(IB) 141 of 2019 has been filed on 01.02.2019. Since beginning, this matter (most of the times) was adjourned at the request of the Learned Counsel appearing on behalf of the Corporate Debtor. Once, this matter adjourned at the request of Learned Counsel for Corporate Debtor vide order dated 28.01.2020 to provide the copy of the resolution plan to the to the Corporate Debtor in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anism being adopted by any of the parties. Considering these aspects and facts that both affidavit in reply as well as written submission of the Corporate Debtor (again filed now after the hearing) are on record, we hereby proceed to dispose of this matter on merits. 2. The facts, in brief, are that the Corporate Debtor is a corporate guarantor in respect of loan given by Financial Creditor to the principal borrower i.e. M/s. Korba West Power Company Limited in respect of facility extended by the Financial Creditor to such borrower for setting up a thermal power project. The Corporate Debtor executed corporate guarantees. Due to default by the principal borrower, the Financial Creditor initiated proceeding against the principal borrower as well as invoked corporate guarantees. The corporate guarantee given by the Corporate Debtor was invoked on 05.06.2018 to the extent of the liability of the corporate guarantor. In the meanwhile, the principal borrower, who had been admitted into CIRP found the resolution and resolution plan was approved. Now, the proceedings filed under Section 7 of IBC, 2016 against the corporate guarantor are being perused. 3. Learned Counsel for the Fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pleas made by the Corporate Debtor, nature and extent of liability of the Corporate Debtor is limited to the terms of deed of guarantee. 5. In rejoinder, Learned Counsel for the Applicant has reproduced relevant extracts of the resolution plan and based upon the provisions of the approved resolution plan, it has been stated that it is only balanced financial creditor's debt which is being the subject matter of the present application. It has again reiterated that in the resolution plan itself, it has been provided with the approval of the resolution plan will not in any way and resolve into extinguishment of any claims which the Financial Creditor may have been against the Respondent in the present application in respect of guarantee. It has also been claimed that guarantee becomes debt as soon as guarantee is invoked and corporate guarantor becomes Corporate Debtor in terms of the provisions of the CODE. On default, right to take recourse under Section 7 of IBC, 2016 arises. It has further been claimed that discharge or release of the principal borrower under resolution plan would not affect independent obligation of the Respondent/Corporate Debtor under guarantee. It has a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recover the balance amount only. In any case, this aspect can be resolved during the course of CIRP. 8. The Financial Creditor has suggested the name of one Mr. Srikanth Dwarkanath, having Registration No. IBBI/IPA-001-IP-P00057/2017-2018/10135, Email: srikanth.dwarkanath@gmail.com for appointment as Interim Resolution Professional against whom no disciplinary proceeding is pending. The application is defect free. Hence, we admit the Corporate Debtors in CIRP and pass following order: 9. I.A. 513 of 2019, We have considered the submission made by both sides and material on record and we do not find any merit in any of the allegations made by the Corporate Debtor as regard to malicious initiation of CIRP against the Corporate Debtor in filing of application under Section 7 of IBC, 2016. Accordingly, I.A. 513 of 2019 stands dismissed. ORDER 1. Corporate Debtor M/s. Avantha Power Infrastructure Limited is admitted in Corporate Insolvency Resolution Process under Section 7 of Insolvency and Bankruptcy Code, 2016. 2. We appoint one Mr. Srikanth Dwarkanath, having Registration No. IBBI/IPA-001-IP-P00057/2017-2018/10135, Email: srikanth.dwarkanath@gmail.com under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Corporate Debtor, its Promoter or any other person required to assist or co-operate with IRP, do not assist or Co-operate, IRP is at liberty to make appropriate application to this Adjudicating Authority with a prayer for passing an appropriate order. 9. 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. 10. We direct the Financial Creditor/Applicant to pay the IRP a sum of ₹ 50,000/- (Rs. Fifty Thousand) as advance against fees expenses till the COC decides about his fees/expenses. 11. The Registry is directed to communicate a copy of this order to the Petitioner-Financial Creditor, Corporate Debtor and to the Interim Resolution Professional and the concerned Registrar of Companies, after completion of necessary formalities, within three working days and upload the same on website immediately after pronouncement of the order. 12. The commencement of Corporate Insolvency Resolution Process (CIRP) shall be effective fro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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