2022 (2) TMI 205 - Tri - Insolvency and Bankruptcy

Insolvency Resolution Process Initiated against Personal Guarantor | Procedural Compliance Emphasized

DBS Bank India Limited Versus Aamir Ahmed

The court granted the application under Section 95 of the Insolvency and Bankruptcy Code, allowing the initiation of the Insolvency Resolution Process ... Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - NPA - Personal Guarantors to Corporate Debtors - existence of debt and dispute or not - HELD THAT:- While availing the aforesaid loan/credit facilities, the CD did not maintain financial discipline and miserably failed to adhere to the terms and conditions laid out in the Working Capital Consortium Agreement. As a result, the account of CD was declared as NPA on 07.07.2015 - It is further stated that, a section 7 application under the I & B Code, 2016, was filed by M/s. ICICI Bank Limited against the CD, for initiation of CIRP proceedings, which was admitted by the Hon'ble Tribunal on 19.03.2019. Eventually, this Hon'ble AA, vide order dated 24.12.2020, was pleased to finally approve the Resolution Plan for the CD in terms of Section 31(1) of the Code. The Ld, Counsel for the applicant further submitted that a Demand Notice in Form B, under rule 7(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process of Personal Guarantors to Corporate Debtor) Rules, 2019, was issued by the Financial Creditor, i.e., DBS Bank India Limited on 21.01.2021, to the Personal Guarantor, in respect of the unpaid debt due from M/s. VIL Limited (Corporate Debtor), under rule 7(1) of the IBC Rules 2019. It is pertinent to mention that as per part-III of Form-C, the total debt from the personal guarantor, by way of personal guarantee given to M/s. DBS Bank India Limited, including interest, amounts to ₹ 59,65,43,741/- - It is made known to everyone that on the date of filing this Application by the Applicant/Creditor, the interim-moratorium commences, as stipulated under Section 96(1)(a), in relation to all the debts of the personal guarantor and shall cease to have effect on the date of admission of this Application and during the interim-moratorium period, few actions were prohibited. List the matter for further proceedings in the case on 21.02.2022. Issues:Application under Section 95 of the Insolvency and Bankruptcy Code against a Personal Guarantor.Detailed Analysis:1. The Financial Creditor, M/s. DBS Bank India Ltd., filed an application under Section 95 of the Insolvency and Bankruptcy Code, 2016, seeking to initiate the Insolvency Resolution Process against a Personal Guarantor to the Corporate Debtor, 'M/s. VIL Limited', for an outstanding debt of Rs. 59,65,43,741/- as of 07.07.2015, due from the Corporate Debtor.2. The CD had availed working capital facilities from the Bank, and subsequent agreements were made for financial facilities, with personal guarantees provided by promoters and the Personal Guarantor. The CD failed to maintain financial discipline, leading to the account being declared as NPA on 07.07.2015.3. A section 7 application under the I & B Code, 2016, was previously filed by another bank against the CD, which was admitted, and a Resolution Plan was approved. A Demand Notice was issued to the Personal Guarantor by the Financial Creditor in respect of the unpaid debt from the Corporate Debtor.4. The total debt from the Personal Guarantor, including interest, was stated to be Rs. 59,65,43,741/-. Upon filing the application, an interim-moratorium commenced, prohibiting legal actions or proceedings related to the debt of the Personal Guarantor.5. Ms. Ritu Rastogi was appointed as the Resolution Professional, with no pending disciplinary proceedings against her. The Resolution Professional is directed to make recommendations on the application and exercise powers under Section 99 of the Code.6. The matter was listed for further proceedings on a specified date, with directions to serve copies of the order and documents to the Resolution Professional for compliance.This judgment highlights the legal process involved in initiating insolvency proceedings against a Personal Guarantor, detailing the debt, agreements, failure to adhere to terms, issuance of Demand Notice, appointment of Resolution Professional, and the commencement of interim-moratorium. The Resolution Professional's role in evaluating the application and making recommendations is emphasized, ensuring compliance with the Insolvency and Bankruptcy Code provisions.