TMI Blog2024 (4) TMI 537X X X X Extracts X X X X X X X X Extracts X X X X ..... proceeding against Personal Guarantor. Additionally, pendency of Resolution Plan approval also cannot be a ground for dismissal of proceedings against the Personal Guarantor. The Financial Creditor issued notice on 12.12.2017 under section 13(2) of the SARFAESI Act,2002 invoking the guarantee and calling upon the Guarantor to pay the said amount within 60 days - The Financial Creditor issued another demand notice on 31.10.2020 addressed to the Principal Borrower and Personal Guarantor and is relying on this notice for limitation. This bench holds that the guarantee was invoked on 12.12.2017 and the limitation began on that day and any subsequent notice of demand cannot be considered for the purpose of limitation. Since the invocation of gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Baroda for an Amount of Rs. 27,19,00,000/- and 30,00,00,000/-. 3. A Supplemental Composite Agreement of Hypothecation of Goods, Book Debts Moveable Machinery dated 18.01.2016 was executed between Corporate Debtor and Financial Creditor for securing the various credit facilities aggregating to Rs.30 Crores. 4. A Supplemental Memorandum of Entry for Mortgage by Deposit of Title Deeds dated 08.03.2016 was executed by the Corporate Debtor in favour of Financial Creditor for securing the various credit facilities aggregating to Rs. 30 Crores. 5. The Financial Creditor issued notice under section 13(2) of SARFAESI Act,2002 dated 12.12.2017 against the Personal Guarantors viz Mrs. Zulekha Amir Dodhia for recalling of the outstanding amount. 6. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sonal guarantor requiring the personal guarantor to prove repayment of the debt claimed as unpaid by the creditor in compliance with provisions of section 99(2) of the code. The RP has received a letter dated 29.03.2022 vide email from the personal guarantor. The RP has concluded that as on date, the debt is outstanding against the personal guarantor which is payable to the Bank of Baroda. c. That the present application satisfies the requirements of provisions of section 95 of the code. d. That the personal guarantor herself admitted vide his letter dated 29.03.2022 that she had approached the Bank of Baroda, Creditor, on various occasion for One Time Settlement scheme which was not successful. Furthermore, she has also in para 8 of his le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icant against this Respondent. 10. The proceedings in the present matter was put on hold since the Constitutional Validity of the Sections 94 to 100 relating to the insolvency of Personal Guarantor was pending before the Hon ble Supreme CP/IB/243/AHM/2021 State Bank of India v/s Rohit S Sharma 12 of 22 Court in the matter of Dilip B. Jiwrajka V/s Union of India Ors. in WP (civil)No. 1281 of 2021. 11. The Hon ble Supreme Court in the judgement of Dilip B. Jiwrajka V/s Union of India Ors. in WP (civil)No. 1281 of 2021 dated 09.11.2023 upheld the Constitutional Validity of the Sections 94 to 100 and the Conclusion of the Judgments are as follows: i. No judicial adjudication is involved at the stages envisaged in Sections 95 to Section 99 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecides under Section 100 whether to accept or reject the application. The report of the resolution professional is only recommendatory in nature and hence does not bind the adjudicatory authority when it exercises its jurisdiction under Section 100; vii. The adjudicatory authority must observe the principles of natural justice when it exercises jurisdiction under Section 100 to determine whether to accept or reject the application; viii. The purpose of the interim moratorium under Section 96 is to protect the debtor from further legal proceedings; and ix. The provisions of Section 95 to Section 100 of the IBC are not unconstitutional as they do not violate Article 14 and Article 21 of the Constitution. FINDINGS 12. We have heard the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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