2018 (8) TMI 138

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.... the Corporate Debtor, and perused the pleading including the Written Submissions and typed set of documents filed by the Financial Creditor and Corporate Debtor. 3. The Financial Creditor has claimed an amount to the tune of USD 15,60,000/- which was disbursed during June, 2010 to 26th of March, 2013. Now, the amount claimed to be in default as on date is USD 19,57,441/-, which the Corporate Debtor failed to pay. The detailed computation sheet for outstanding amount (including interest) is enclosed at pages 172 and 173 of the typed set filed with the Application. 4. It has briefly been submitted by the Financial Creditor that a Loan Agreement has been entered among the Financial Creditor viz., M/s. Baobab Broadband Limited, the Borrower, viz., M/s. GCL Infotek, the Corporate Debtor/Guarantor viz., M/s. Gemini Communication Limited and RB DMCC, on 12.06.2010 whereby the Financial Creditor agreed to pay to the borrower viz., M/s. GCL Infotek, the sister concern of the Corporate Debtor/Guarantor a sum of USD 2 Million, and in furtherance of the said agreement more specifically Article 3 thereof ( page 183 of typed set filed with the Application), the Corporate Debtor/Guarantor exec....

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....s 140 and 141 of the Indian Contract Act, 1872 or other section of that Act or any other law, the Guarantor will not claim to be discharged to any extent because of Baobab's failure to take any or other such security or in requiring or obtaining any or other such security or losing for any reason whatsoever including reasons attributable to its default and negligence, benefit of any or other such security or any of rights any or other such security that have been or could have been taken. The Guarantor shall not be entitled to any of the rights or benefits conferred on sureties by sections 133, 134, 135 and 139 of the Indian Contract Act, 1872." 6. In the light of the above mentioned recitals of the 'Deed of Guarantee', it becomes crystal clear that the 'Deed of Guarantee' is completely independent of any other security or securities comprised in any instrument(s) executed or to be executed by the borrower viz., M/s. GCL Infotek in favour of the Financial Creditor, at the time when proceedings were taken against the guarantor under guarantee for outstanding amount/unrealised amount of loan and the guarantor shall have no right to the benefit of the securities (if any) created by t....

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....ited the following judgments along with their ratio decidendi: 1. Kalra Iron Stores v. Faridabad Fabricators (P.) Ltd. 1991 SCC Online Del 338. * Proof of debt is required to be filed to prove that the company is unable to pay the debts under the requirement of section 433(e) through the records, accounts or Acknowledgments. *. Tata Iron & Steel Co. Ltd. v. Omega Cables Ltd. [2008] 142 Comp. Cas. 468 (Mad.). * In the company petition for winding up of a company, first thing to the Petitioner has to prove that the amount due is undisputed. 3. Madhusudan Gordhandas & Co. v. Madhu Woollen Industries (P.) Ltd. [1972] 42 Comp. Cas. 125 (SC). * Test for winding up. 4. SICAL - CWT Distriparks Ltd. v. Besser Concrete Systems Ltd. [2003] 46 SCL 196 (Mad.). * If the very existence of the Guarantee Agreement itself is disputed then the Petitioner should establish the agreement in question in a civil court. 5. Shapoorji Pallonji Finance Ltd. v. Shree Rayalaseema Alkalies & Allied Chemicals Ltd. [2006] 70 SCL 380 (AP). * No Clear Admitted Liability and Arbitration Clause. 6. Registrar of Companies v. Kavita Benefit (P.) Ltd. [1978] 48 Comp. Cas. 231 (Guj.). * Defining th....

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....onsultants SRO 2002 (129) DRJ 113 (DB). The Financial Creditor has also controverted the objection with regard to the period of limitation by relying upon the rulings given by Hon'ble NCLAT in Neelkant Township & Construction (P.) Ltd. v. Urban Infrastructure Trustee Ltd. [CA (AT) No. 44 of 2017], wherein the Hon'ble NCLAT has held that I&B Code 2016 does not suggest that the Limitation is applicable to the Code. 14. In view of the facts and circumstances and the legal position stated above, the rulings relied upon by the Corporate Debtor/ Guarantor are not applicable to the case on hand. Therefore, the objections raised by the Corporate Debtor/ Guarantor stand rejected. The application of the Financial Creditor is complete in all respect. The Financial Creditor has also proposed the name of IRP after seeking consent in Form 2 which is placed at page 169 of the typed set filed with the Application. 15. In the light of the discussion made above and after examining the record, this Adjudicating Authority has ascertained the existence of a default on the part of the Corporate Debtor/ Guarantor. The Financial Creditor has fulfilled all the requirements of law and has also proposed t....