TaxTMI 
TaxTMI 
2021 (8) TMI 797
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....ion Process. 3. The brief facts of the case are that the Corporate Debtor S.K. Products LLP, had applied for sanction of loan from the Financial Creditor vide application form dated 05.10.2018. The total amount due is Rs. 31,52,781/- which includes principal outstanding of Rs. 27,50,000/- alongwith interest of Rs. 4,02,781/- @18% p.a. from 12.04.2019 to 03.02.2020. The debt was due as on 12.04.2019, and the default occurred on 12.04.2019. 4. The Financial Creditor annexed the documents to prove the existence of debt and amount in default provided hereunder: a. Copy of Board Resolution dated 05.10.2018 b. Copy of Loan application dated 05.10.2018 c. Copy of finance proposal dated 10.10.2018 d. Copy of discount letter dated 11.10.2018 e. Copy of loan recall notice dated 18.09.2019 f. Copy of demand notice dated 03.02.2020 5. S.K. Products LLP, vide letter dated 10.10.2018, proposed disbursal against Bill of Exchange. The financial creditor had advanced a cheque dated 11.10.2018 bearing No. 930048 and executed a demand Bill of Exchange dated 11.10.2018 alongwith the discount letter dated 11.10.2018, Post-dated cheques issu....
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....rrower and the surety would prejudice the right of the creditor provided under the contract of guarantee to proceed simultaneously against both of them. 7.5 However, the committee noted that the appellate authority has, in certain cases, taken a view contrary to its decision taken in the Piramal Enterprises Ltd. 31 Case. For example, in Edelweiss Asset Reconstruction Company Limited V. Sachet Infrastructure Private Limited & Others. 32, the Appellate Authority has permitted simultaneous initiation of CIRP against the principal borrower and its corporate guarantors. Further, the appellate authority has also admitted a petition to review its aforesaid judgment in the Piramal Enterprises Limited case 33 Give this, the Committee decided that no legal changes may be required at the moment, and this issue may be left to judicial determination." 9. The Hon'ble NCLAT at Para 19 has categorically held that in the matter of guarantee, CIRP can proceed against the principal borrower as well as guarantor. 10. The Hon'ble NCLAT also clarified that in the matter of Dr. Vishnu Kumar Agarwal Vs. Piramal Enterprises Limited, it was held that once a petition under section 7 of the Cod....
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.... Guarantor/Respondent had filed Affidavit in reply and raised preliminary objections against the maintainability of Petition u/s 95 on the following grounds: - a. section 60(1) of the Code envisages that the National Company Law Tribunal will have jurisdiction in relation to Insolvency Resolution and liquidation of Corporate Persons including Corporate Debtor and personal guarantors. But however; b. section 60(2) categorically stipulate notwithstanding anything contained in the Code where the Insolvency Resolution Process or liquidation proceedings against the Corporate Debtor is pending before National Company Law Tribunal. c. The jurisdiction to entertain Insolvency and Bankruptcy proceedings against the individual will vest in the National Company Law Tribunal (hereinafter referred as NCLT) only on the following conditions: i. the individual is a personal guarantor to the debt availed by the corporate debtor; ii. an Insolvency Resolution Proceedings with respect to said Corporate Debtor is pending before the said NCLT; or iii. liquidation proceeding with respect to corporate debtor is pending before NCLT. d. Unless t....
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....and transferred to the Adjudicating Authority dealing with insolvency resolution process or liquidation proceeding of such corporate debtor. (4) The National Company Law Tribunal shall be vested with all the powers of the Debt Recovery Tribunal as contemplated under Part III of this Code for the purpose of sub-section (2). (5) Notwithstanding anything to the contrary contained in any other law for the time being in force, the National Company Law Tribunal shall have jurisdiction to entertain or dispose of- (a) any application or proceeding by or against the corporate debtor or corporate person; (b) any claim made by or against the corporate debtor or corporate person, including claims by or against any of its subsidiaries situated in India; and (c) any question of priorities or any question of law or facts, arising out of or in relation to the insolvency resolution or liquidation proceedings of the corporate debtor or corporate person under this Code. 6. Notwithstanding anything contained in the limitation Act, 1963 or in any other law for the time being in force, in computing the period of limitation specified for any suit or a....