TaxTMI 
TaxTMI 
2021 (3) TMI 1044
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....rantor of M/s. Supreme (India) Impex Limited on the ground that corporate guarantor/Corporate Debtor committed default in paying the financial debt of Rs. 58,75,000/-. 3. Since the Financial Creditor Dena Bank has filed these two applications under Section 7 of IBC, 2016 against two corporate guarantors of same principal borrower M/s. Supreme (India) Impex Limited and as the facts of the applications filed by the Financial Creditor and the defence raised by the Corporate Guarantors are the same, this common order is passed to dispose of both above CP(IB) 131 of 2019 and CP(IB) 132 of 2019. 4. For the brevity, the fact of CP(IB) 132 of 2019 are stated below. The facts are admitted in both petition by the both corporate guarantors and they are as follows: * Supreme (India) Impex Limited and M/s. Utility Agrotech Industries Pvt. Ltd. had executed deed of guarantee on 02.01.2018. Since the principal borrower committed default in paying the loan amount which was disbursed by the Financial Creditor, the Financial Creditor by letter dated 17.01.2019 invoke the guarantees and called upon both the guarantors (Corporate Debtors) to pay the debt but they could not comply the sa....
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....cating authority is to be satisfied that a default has occurred, that the corporate debtor is entitled to point out that a default has not occurred in the sense that the "debt", which may also include a disputed claim, is not due. A debt may not be due if it is not payable in law or in fact. The moment the adjudicating authority is satisfied that a default has occurred, the application must be admitted unless it is incomplete, in which case it may give notice to the applicant to rectify the defect within 7 days of receipt of a notice from the adjudicating authority. Under sub-section (7), the adjudicating authority shall then communicate the order passed to the financial creditor and corporate debtor within 7 days of admission or rejection of such application, as the case may be". Hence, the defence raised by the corporate guarantor about non-observing guideline issued by RBI by the Financial Creditor cannot be the defence to be considered in this proceedings. It is not recovery proceedings, hence, we reject this defence out-rightly. 9. The second defence raised by the corporate guarantor that Financial Creditor did not comply the provision of Section 215 of the IBC, 2016. Se....
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....we have referred to the above provision which had come on the statute book when Act 26 of 2018 was enforced and the Judgement in the matter of Piramal which was passed on 8th January, 2019 did not notice the above amendment. If the above provisions of Section 60(2) and (3) are kept in view, it can be said that IBC has no aversion to simultaneously proceeding against the Corporate Debtor and Corporate Guarantor. If two Applications can be filed, for the same amount against Principal Borrower and Guarantor keeping in view the above provisions, the Applications can also be maintained. It is for such reason that Sub-Section (2) of Section 60 provides that if insolvency resolution process or liquidation or bankruptcy proceedings of a Corporate Guarantor or Personal Guarantor as the case may be of the Corporate Debtor is pending in any Court or Tribunal, it shall stand transferred to the Adjudicating Authority dealing with insolvency resolution process or liquidation proceeding of such Corporate Debtor, Apparently and for obvious reasons, the law requires that both the proceedings should be before same Adjudicating Authority. It is clear that in the matter of guarantee, CIRP can proceed ....
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....the law as made by earlier Bench of Hon'ble NCLAT in case of Dr. Vishnu Kumar Agarwal v. Piramal Enterprises Ltd. Hon'ble NCLAT has relied on ruling of State Bank of India V. Ramakrishnan and Another and also various amendment carried in IBC, 2016 relating to corporate insolvency process of principal borrower and guarantor and held that simultaneous proceedings against borrower and guarantor are permitted to go on. Hence, we hold that this defence as raised by the Corporate Debtor (corporate guarantor) is not maintainable. 14. It is also submitted by the Learned Counsel for the Corporate Debtor (corporate guarantor) that the officer who had filed this application on behalf of bank was not properly authorized. These proceedings are filed on the basis of power of attorney are not maintainable. We make it clear that officer presenting the application is not the Financial Creditor but it is the bank who is Financial Creditor. Since debt and default are admitted by the Corporate Debtor, we do not think it proper to reject these applications on this technical ground more particularly when we are dealing with the matter pertain to commercial/economic law where huge public money....