9911796707
TMI Blog2022 (5) TMI 751X X X X Extracts X X X X X X X X Extracts X X X X ..... 1/-. The Respondent/Personal Guarantor stood as Guarantor in respect for repayment of interest, cost, charges and other expenses in respect of Deed of Guarantee in favour of SBI led Consortium banks. The Personal Guarantor also gave undertaking/indemnity in consideration of lenders having agreed to restructure the financial liabilities. 2. In so far as the Personal Guarantor to Corporate Debtor is concerned, the Hon'ble Supreme Court of India in the matter of Lalit Kumar Jain vs. Union of India & Ors. in the Transferred Case (Civil) No. 245/2020 has upheld the vires of the notification issued by the Central Government vide S.O. 4126(E) dated 15.11.2019, in so far as it relates to coming into force of Insolvency and Bankruptcy Process of Personal Guarantors to Corporate Debtor. Thus, when a Corporate Insolvency Resolution Process in relation to Corporate Debtor is pending before this Adjudicating Authority, then as per Section 60(2) of IBC, 2016 the NCLT would be competent forum to file an Application for Personal Guarantor in relation to such Corporate Debtor. The Corporate Insolvency Resolution process in respect of the Corporate Debtor was ordered by this Adjudicating Author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y letter dated 31.08.2021 on the ground that the offer proposed was very low. 9. Due to non-payment of the amount by the Corporate Debtor, the Financial Creditor has filed this application for initiation of Insolvency Resolution Process against the Guarantor under Section 95(1) of IBC, 2016. The Financial Creditor invoked the personal guarantee and issued demand notice to the Respondent on 02.08.2021 under Rule 7(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtors) Rules, 2019. The demand notice was delivered to the Respondent on 05.08.2021, to which he has replied vide letter dated 19.08.2021, denying the averments of the demand notice. 10. On presentation of the application by the Applicant/Financial Creditor, this Tribunal vide order dated 05.10.2021 held that the name of Interim Resolution Profession (hereinafter referred to as "IRP") as suggested by the Financial Creditor i.e. Sunil Kumar Agarwal be forwarded to IBBI for nomination of the same to carry out Corporate Insolvency Resolution Process of the Personal Guarantor as per section 97(3) of IBC, 2016. This Tribunal also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest term loans from the lenders. 12. The Respondent/Personal Guarantor has stated that an order dated 14.10.2021 for approval of resolution plan has been passed in IA No. 549 of 2021 in CP (IB) No. 221 of 2019 by this Adjudicating Authority. It is further submitted that the liability towards the personal guarantee will be reduced from the receivables on account of approval of resolution plan. 13. We have heard the learned counsel for both the parties and perused the documents on record. We have also gone through the report dated 04.12.2021 filed by the IRP. It is noted under section 128 of Indian Contract Act, 1872 that when a default is committed, the Principal Borrower and Surety are jointly and severally liable to Creditor and Creditor has the right to recover its dues from either of them or from both of them simultaneously. For benevolent reference, the said section of Indian Contract Act, 1872 is reproduced below: "The liability of the surety is co-extensive with that of the principal debtor, unless it is otherwise provided by the contract". The Hon'ble National Company Law Appellate Tribunal in the matter of State Bank of India vs. Athena Energy Ven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incipal borrower from the debt owed by it to its creditor, by an involuntary process, i.e. by operation of law, or due to liquidation or insolvency proceeding, does not absolve the surety/guarantor of his or her liability, which arises out of an independent contract." Based on the above mentioned judgment of Hon'ble Supreme Court, the Personal Guarantor cannot be discharged from his liability upon the approval of Resolution Plan under section 31 of IBC, 2016. Therefore, the liability of the Personal Guarantor continues and the Financial Creditor is in condition to realize the default amount from the Personal Guarantor. On-going through the averments in the IBA, the reply of Respondents after the report of the Resolution Professional as also the report of Resolution Professional narrated above, we are of the considered opinion that this is a fit case for admission and proceed against the Personal Guarantor/Respondent and initiate Corporate Insolvency Resolution Process. It is also seen from the report of Resolution Professional that he has not recommended for a negotiation between the parties for arriving at an amicable settlement for repayment. Hence, we admit CP (IB) No. 166 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation disclosed in the application filed by the debtor under Sections 94 or 95, as the case may be; and b) claims received by the Resolution Professional under Section 102 within 30 days from the date of the notice. The debtor shall prepare a repayment plan under Section 105, in consultation with the Resolution Professional, containing a proposal to the Creditors for restructuring of his debts or affairs. The repayment plan may authorize or require the Resolution Professional to:- a) carry on the debtor's business or trade on his behalf or in his name; or b) realise the assets of the debtor; or c) administer or dispose of any funds of the debtor. The repayment plan shall include the following, namely;- a) justification for preparation of such repayment plan and reasons on the basis of which the creditors may agree upon the plan; b) provision for payment of fee to the Resolution Professional; c) such other matters as may be specified. 5. The Resolution Professional shall submit the repayment plan along with his report on the plan to this Authority within a period of 21 days from the last date of submission of claims, as provided under Section 106. 6. In cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
