2018 (6) TMI 1702

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....ard counsels for the financial creditor, and the corporate debtor, and perused the pleading including the written submissions and typed set of documents filed by the financial creditor and the 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 March 26, 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 Ltd., the borrower, viz., M/s. GCL Infotek, the corporate debtor/guarantor, viz., M/s. Gemini Communication Ltd., and RB DMCC, on June 12, 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 appli....

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....of the Indian Contract Act, 1872 or other section of that Act or any other law, the guarantor will not claim to be dis charged 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 bene fits conferred on sureties by sections 133, 134, 135 and 139 of the Indian Contract Act, 1872." 6. In the light of the abovementioned 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 the bor....

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.... 9. The corporate debtor/guarantor in support of its arguments has cited the following judgments along with their ratio decidendi : (1) Kalra Iron Stores v. Faridabad Fabricators P. Ltd. (No. 2) reported in [1991] SCC Online Del 338 ; [1992] 73 Comp Cas 337 (Delhi). * 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. (2) Tata Iron and Steel Co. Ltd. v. Omega Cables Ltd. reported in [2008] 142 Comp Cas 468 (Mad) Decision reversed in [2009] 149 Como Cas 457 (Mad).; MANU/TN/0511/2008. * In the company petition for winding up of a company, first thing the petitioner has to prove that the amount due is undisputed. (3) Madhusudan Gordhandas and Co. v. Madhu Woollen Industries P. Ltd. reported in [1971] 3 SCC 632 ; [1972] 42 Comp Cas 125 (SC). * Test for winding up. (4) SICAL-CWT Distriparks Ltd. v. Besser Concrete Systems Ltd. reported in [2002] SCC Online Mad 905 ; [2003] 113 Comp Cas 383 (Mad). * If the very existence of the guarantee agreement itself is disputed then the petitioner should es....

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....ith the applicable law and regulations. Therefore, the corporate debtor/guarantor cannot hide itself behind its own failure to obtain any required approval to wriggle out of its liability or consequences of default. 13. It has further been stated that the failure on the part of the corporate debtor/guarantor to obtain such approval, does not impinge upon the validity of the guarantee issued. The financial creditor has relied upon the judgment of hon'ble High Court of Delhi given in SRM Exploration P. Ltd. v. N&S&N Consultants SRO reported in [2002] 129 DRJ 113. The financial creditor has also controverted the objection with regard to the period of limitation by relying upon the rulings given by the hon'ble National Company Law Appellate Tribunal in Neelkanth Township and Construction P. Ltd. v. Urban Infrastructure Trustees Ltd. [2018] 2 Comp Cas-OL 49 (NCLAT) (Company Appeal (AT) No. 44 of 2017), wherein the hon'ble National Company Law Appellate Tribunal has held that the I and 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....