2021 (3) TMI 1260 - Tri - Insolvency and Bankruptcy

Petition under Section 95 granted against personal guarantor for debt default.

The petition filed under Section 95 of the I & B Code against a personal guarantor was allowed by the Bench due to the clear default of the Personal ... Appointment of Resolution Professional - Initiation of personal insolvency against the Personal Guarantor of the Corporate Debtor by Resolution Professional - Section 95 of I&B Code - HELD THAT:- The Bench, after hearing the Petitioner, notes that the Corporate Guarantor has not filed any submissions and on the date of hearing there was no representation from the side of the Respondent, i.e., the Personal Guarantor. Based on the submissions made by the Applicant and the documents produced and placed on record before this Bench, the Bench has no doubt in its mind that there is a ‘default’ on the part of the Personal Guarantor by not fulfilling the debt owed to the Corporate Debtor, i.e., Pratibha Industries Limited as per the Deed of Guarantee entered between the parties through the Deed of Guarantee dated 10.03.2017 - This Bench “Allows” the Application filed by Mr. Ram Ratan Kanungo, Insolvency Resolution Professional on behalf of State Bank of India, the Financial Creditor, under Section 95 of the Insolvency & Bankruptcy Code, 2016 read with Rule 7 of the IBC Rules 2019 against Mr. Ravi Ajit Kulkarni, the Personal Guarantor of the Corporate Debtor, M/s. Pratibha Industries Limited in CP No. 1189/2020. The Interim Moratorium as per Section 96(1) of the Code has commenced from the date of filing of Application by the Financial Creditor, i.e.,25.01.2021. The Bench notes that the appointment of Resolution Professional under Section 97 of the Code is critical and essential not only for the Applicant but also to safeguard the assets of the Personal Guarantor in terms of the provisions of the Code. Since the present Petition has been filed through the Resolution Professional, Mr. Ram Ratan Kanoongo, bearing Registration No. IBBI/IPA-001/IP-P00070/2017-18/10156, this Bench confirms the appointment of the Resolution Professional in the matter. In this matter, the Resolution Professional, Shri Ram Ratan Kanoongo, shall exercise all the powers as enumerated under Section 99 of the Code read with Rules made there under - List the matter for further proceedings in the case on 15.04.2021. Issues involved:1. Filing of petition under Section 95 of the I & B Code against a personal guarantor.2. Admittance of Corporate Debtor under Corporate Insolvency Resolution Process.3. Invocation of Personal Guarantee by the Financial Creditor.4. Issuance and service of Demand Notice.5. Calculation of total debt owed by the Personal Guarantor.6. Lack of response from the Respondent.7. Decision on the application and commencement of Interim Moratorium.8. Appointment and powers of the Resolution Professional.Analysis:1. The petition was filed under Section 95 of the I & B Code against a personal guarantor, Mr. Ajit Bhagwan Kulkarni, by the Resolution Professional appointed by the Creditor, State Bank of India. The Resolution Professional was authorized to file the petition, as evidenced by an authority letter issued by the State Bank of India. The consent form and registration certificate of the Resolution Professional were annexed with the petition.2. The Corporate Debtor, Pratibha Industries Limited, was admitted under the Corporate Insolvency Resolution Process by an NCLT Mumbai Order. A Personal Guarantee was provided by the suspended director of the Corporate Debtor, Mr. Ajit Bhagwan Kulkarni, to the State Bank of India.3. The Financial Creditor issued a Personal Guarantee Invocation Notice to the Personal Guarantor. A Demand Notice was also issued to the Corporate Guarantor regarding the unpaid debt due from the Corporate Debtor, with proof of delivery provided by the Applicant.4. The total debt owed by the Personal Guarantor, including interest, was calculated and mentioned in the petition. The Respondent, the Personal Guarantor, did not file any submissions or appear during the hearing.5. The Bench found a clear default on the part of the Personal Guarantor in fulfilling the debt owed to the Corporate Debtor as per the Deed of Guarantee. The application filed by the Resolution Professional on behalf of the Financial Creditor was allowed, and the Interim Moratorium commenced from the date of filing the application.6. The Resolution Professional's appointment was confirmed, and he was directed to exercise powers under Section 99 of the Code. Recommendations for the acceptance or rejection of the application were to be made within the stipulated time, with further proceedings scheduled for a later date.This detailed analysis covers the various issues addressed in the judgment, providing a comprehensive understanding of the legal proceedings and decisions made by the Tribunal.