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TMI Blog2024 (2) TMI 1494X X X X Extracts X X X X X X X X Extracts X X X X ..... olvency Resolution Process, in his personal Capacity without prejudice to the rights of the Applicant Bank against the Corporate Debtor. 2.1. It is submitted that the Corporate Debtor is presently undergoing Corporate Insolvency Resolution Process initiated by the Bank of Baroda. Corporate Debtor is the Principal Borrower to whom the Credit Facilities had been sanctioned by the Applicant. Mr. Deepen Arun Parekh is the Guarantor in his personal capacity in respect of Credit Facilities sanctioned to the Corporate Debtor M/s. Pratibha Industries Ltd. 2.2. It is averred that the Petitioner had sanctioned Cash Credit Cum OD BD Facility to the limit of Rs. 75 Crore to the Corporate Debtor, M/s. Parekh Aluminex Limited vide Loan Sanction Letter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Corporate Debtor and its Guarantors including the Respondent herein to pay an aggregate sum of Rs. 157,44,67,411/- due and payable by the Corporate Debtor. 2.5. It is submitted that the Demand Notice in Form-B was issued to the Respondent and called up on him to pay a total sum of Rs. 354,09,04,055/- . The said Demand Notice is also attached herein as "Annexure 1". 2.6. It is submitted that the Respondent despite service of Demand Notice, the Respondent has not made any payment. Hence this Petition. Brief Note on Behalf of the Respondent 3. The Respondent, Personal Guarantor has also filed and placed on record brief Notes thereby opposing the Company Petition and also prays for dismissal of the Company Petition. 3.1. Respondent s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e completed. Therefore, the service of the demand notice in this case was never complete and in absence of service of the demand notice, this Petition filed by the Petitioner is not maintainable and liable to be dismissed. 3.4. It is the submissions of the Petitioner that they were not aware about any alternate address of the Respondent. However, Respondent submits that this statement is absolutely false as the Deed of Guarantee at page 53 of the Company Petition sets out the only address of the Respondent i.e. 85, Navrang, Peddar Road, Dr. G. Deshmukh Marg, Mumbai - 400 026. Further, the address at page 4 of the Company Petition, as provided in the form, sets out Present / Permanent / Business Address. Both the column in the form, which i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of issuance of Deed of Guarantee, which was on 10th April 2014, as the account of the Company was already on default by then, the Petition is barred by law of limitation by 2017 and in any event, the invocation of the Deed of Guarantee was in 2016, the Petition is barred by law of limitation in 2019. 3.6. Respondent lastly submits that the Deed of Guarantee being conditional guarantee cannot be subject matter of present Petition and the invocation on face of itself is illegal and hence, this Petition is liable to be dismissed. To substantiate this submission, Respondent states as under: 3.6.1. The Company committed default in the year 2013 as admitted by the Petitioner. It is only to revive the Company the Respondent herein as a member ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itself provides that it is a conditional guarantee. 3.6.4. Clause 12 of the Deed of Guarantee is reproduced hereinbelow: ".....12. It is agreed and understood by the Lenders that this Guarantee shall become effective, if and only, if the CDR package sanctioned by the CDR EG has been implemented in full and totality and signed by all lenders in terms of the LOA issued. It is further agreed and understood by the Lenders that this Guarantee shall cease to have effect and shall automatically terminate on happening of any of the following events: a. The Guarantor ceasing to be a member of the Board of Directors of the Borrower for any reason whatsoever. b. The Guarantor ceasing to have any knowledge regarding the day-to-day affairs of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signed by all the lenders in terms of LOA issued. Ld. Counsel for the Personal Guarantor place on record a letter dt. 23.03.2016 having reference No BY.CDR(DAP)No. 749/2015-16, stating that the Company M/s Parekh Aluminex Limited stands exited from the CDR mechanism as failure. 3.6.8. As regards contention that the said Petition is time barred, we find that the Financial Creditor invoked the Guarantee on 18.05.2016 by Notice u/s 13(2) of SARFAESI Act, 2002 and the Corporate Debtor came to be admitted into CIRP on 01.02.2019. Since, we have already returned the finding that this Guarantee had not become effective on account of failure in implementation of CDR Package, we are not dealing with the issue of limitation any further. 3.6.9. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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