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TMI Blog2019 (12) TMI 1596X X X X Extracts X X X X X X X X Extracts X X X X ..... ank of India against M/s. Surana Metals Limited - Corporate Guarantor of the M/s. Mahaveer Construction, a proprietary concern to start Corporate Insolvency Resolution Process (in short "CIRP") of the Corporate Debtor on the ground that the Corporate Debtor being guarantor of the principal borrower committed default in paying financial debt of Rs. 23,90,35,759/- (Rupees Twenty-Three Crore Ninety Lakh Thirty-Five Thousand Seven Hundred and Fifty-Nine Only). 2. The following facts are not in dispute: - 2.1. In the year 2008, the financial creditor granted and disbursed in favour of M/s. Mahaveer Construction the term loan of Rs. 9,60,00,000/- (Rupees Nine Crore Sixty Lakh Only). The Corporate Debtor herein executed deed of guarantee in favo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one through that reply. It Is seen that the Corporate Debtor raised two defenses to contest this application (i) Claim Is time barred. (ii) He being guarantor of the loan of the individual and not the corporate person, this proceeding is not maintainable under Section 5A of the IBC, 2016. 5. We heard Ld. Counsel for the Financial Creditor and Ld. Counsel for the Corporate Debtor at length. We have gone through the evidence on record. 6. It is not in dispute that the loan of Rs. 9,60,00,000/- (Rupees Nine Crore Sixty Lakh Only) was granted and disbursed by the Bank to Mr. Laxmi Pat Surana, proprietor of M/s Mahaveer Construction. He is also the director of M/s. Surana Metals Limited. It is not in dispute that the Corporate Debto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gaurav Hargovindbhai Dave V/s. Asset Reconstruction Company (India) Ltd. & Anr. (Civil Appeal No. 4952 of 2019). 9. We have gone through the Ruling. We hold that this Ruling is not applicable in this case. In case before Hon'ble Supreme Court, the facts were after the date of default in the year 2011, there was no acknowledgment of debt by the Corporate Debtor in that proceeding. In this case, after the default ¡n the year 2010, not only original borrower but also the Corporate Debtor admitted and acknowledgment the debt even in the year 2018. This proceeding is filed within period of limitation. 10. Ld. Counsel for the Corporate Debtor submitted that he cannot be the Corporate Debtor In view of the definition of corporate guarantor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has committed default ¡n paying the same. 12. We find that application is filed well within period of limitation. Financial Creditor suggested name of one Mr. Sunil Mohan Acharya, 245/1, Bhattacharya Para, 6 No. Jheelpar Road, Ward No. 15, New Barrackpur, North 24 Pargana, Kolkata-700131, E-Mail: [email protected] having registration no. IBBI/IPA- N000174/2018-19/12120 for appointment of IRP against whom no disciplinary proceeding appears to be pending. The application is defect free. Hence, we admit the same by following order. ORDER i) The application filed by the Financial Creditor under section 7 of the Insolvency & Bankruptcy Code, 2016 for initiating Corporate Insolvency Resolution Process against the Cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The supply of essential goods or services to the corporate debtor as may be specified shall not be terminated, suspended, or interrupted during moratorium period. vi) The provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. vii) The order of moratorium shall have effect from the date of admission till the completion of the corporate insolvency resolution process. viii) Provided that where at any time during the corporate insolvency resolution process period, if the Adjudicating Authority approves the resolution plan under sub-section (1) of Section 31 or passes an order for liquidation of corporate debtor under Section 33, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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