TaxTMI 
TaxTMI 
2022 (2) TMI 420
X X X X Extracts X X X X
X X X X Extracts X X X X
....Adjudicating Authority has held at para 34 & 35 as follows: "Para 34: Conclusion (i). We hold that, in the present case, due to lack of demand notice by the applicant as per clause 6 Deed of Guarantee, the Guarantee stands un-invoked and consequently, the claim filed by the applicant is not ascertained and accrued liability. (ii) We hold that time barred claims or contingent claims cannot be admitted during the CIRP though such claims will be part of information memorandum being provided to perspective Resolution Applicant. (iii) We hold that so far as the meaning of various words/terms such as "debt due", "debt incurred", "debt owed", "debt due and payable", "claims" and "claims due" which have been used in various Sections / Regulations pertaining to collation / adjudication of claims for the purpose of ascertainment of liability in respect of such claims under CIRP/ Liquidation would mean a debt which is due and payable, both in law or in fact and the provision of Limitation Act, 1963 will be applicable thereto. (iv) We hold that claims in respect of a time barred debt, whether such claim is principal debt or arise out of a contract o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....orrowers have default in repayment of financial assistance sanction and 'Loan Recall Notice cum Arbitration notices' were issued to the 'Principal Borrower' and the Corporate Guarantor/CD on 07.03.2015 for default committed by the 'Principal Borrowers' and simultaneously Arbitration was also initiated. The Appellant issued separate 'Termination -cum - Arbitration Notices' on 07.03.2015 to the Borrowers and Guarantors including the CD for the repayment of outstanding amount alongwith interest etc., and also invoked Arbitration Clause. The Appellant has also submitted that the 'Termination of the Loan' and 'Invocation of Corporate Guarantee' vide notices dated 07.03.2016 took place well within the period of limitation qua all the loans. 'Arbitral Awards' have also been passed on 21.08.2015 and total amount awarded is Rs. 3,62,30,729/- against 'Umiya Ceramic Pvt. Ltd' and similarly 'Arbitration Award' given against 'Gokul Ceramic Pvt. Ltd'. dated 08.01.2016 amount to Rs. 1,69,30,411/-. 6. It is also submitted by the Appellant that none of the three 'Arbitration Award' was set aside by the 'C....
X X X X Extracts X X X X
X X X X Extracts X X X X
....8 to 598, page 676 to 686). b. It is not in dispute that the loan has not been taken by the concerned party as stated above and the 'Corporate guarantee' has not been given by the CD. c. It is also not in dispute that the 'Principal Debtor' has committed a 'default' leading to issue of 'Termination cum Arbitration notice' way back on 07.03.2015 to the 'Corporate Guarantor' and others including the 'Guarantors' were asked to repay the outstanding dues which has been 'defaulted' by the 'Principal Debtor'. d. It is also not in dispute a 'Demand cum Legal Notice' dated 04.02.2015 were not issued to the 'Guarantor'. All these notices are demanding repayment of dues. The terms and conditions were also not disputed between the parties. e. It is very much clear that the 'Deed of Guarantee' provides for 'Continuing Guarantee' and shall be deemed to have given separately for payment of loan, interest thereon cost and other expenses in the agreement and shall be enforced till the entire amount guarantees is paid in full. f. The record reveals that the CIRP commenced on 21.01.2020. Th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ment issued by a bank or financial institution; (h) the amount of any liability in respect of any of the Guarantee or indemnity for any of the items referred to in sub-clauses (a) to (h) of this clause; Section 7: Initiation of corporate insolvency resolution process by financial creditor. 7. (1) A financial creditor either by itself or jointly with 1[other financial creditors, or any other person on behalf of the financial creditor, as may be notified2 by the Central Government] may file an application for initiating corporate insolvency resolution process against a corporate debtor before the Adjudicating Authority when a default has occurred. [Provided that for the financial creditors, referred to in clauses (a) and (b) of sub-section (6A) of section 21, an application for initiating corporate insolvency resolution process against the corporate debtor shall be filed jointly by not less than one hundred of such creditors in the same class or not less than ten per cent. of the total number of such creditors in the same class,whicheverisless: Provided further that for financial creditors who are allottees under a real estate project, an ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sciplinary proceedings pending5 against the proposed resolution professional, it may, by order, admit such application; or (b) default has not occurred or the application under sub-section (2) is incomplete or any disciplinary proceeding is pending5 against the proposed resolution professional, it may, by order, reject such application: Provided that the Adjudicating Authority shall, before rejecting the application under clause (b) of sub-section (5), give a notice to the applicant to rectify the defect in his application within seven days of receipt of such notice from the Adjudicating Authority. (6) The corporate insolvency resolution process shall commence from the date of admission of the application under sub-section (5). (7) The Adjudicating Authority shall communicate- (a) the order under clause (a) of sub-section (5) to the financial creditor and the corporate debtor; (b) the order under clause (b) of sub-section (5) to the financial creditor, within seven days of admission or rejection of such application, as the case may be. h. From the details available on record, it is amply clear that the Appellant has ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... a natural reference. m. This Tribunal feels it necessary to cite the judgment of Hon'ble Supreme Court in Syndicate Bank Vs. Chan Naveerappa Beleri & Ors., reported in AIR 2006 SCC 1874 wherein at para 9, it is observed as under: "9. A guarantor's liability depends upon the terms of his contract. A 'continuing guarantee' is different from an ordinary guarantee. There is also a difference between a guarantee which stipulates that the Guarantor is liable to pay only on a demand by the creditor, and a guarantee which does not contain such a condition. Further, depending on the terms of Guarantee, the liability of a guarantor may be limited to a particular sum, instead of the liability being to the same extent as that of the principal debtor. The liability to pay may arise, on the principal debtor and Guarantor, at the same time or at different points of time. A claim may be even time-barred against the principal debtor, but still enforceable against the Guarantor. The parties may agree that the liability of a guarantor shall arise at a later point of time than that of the principal debtor. We have referred to these aspects only to underline the fact that t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... it appropriate that the claim of the Appellant should be reconsidered even based on the arbitration award. t. In the circumstances, we think it appropriate to remand the matter for a decision afresh on the claim filed by the Appellant. u. The Adjudicating Authority is directed to restore the I. A No. 340 of 2020 in CP(IB) No. 561/7/NCLT/AHM/2018 to its file. We set aside the impugned order and allowed the Appeal. We direct the Resolution Professional to consider the claims of the Appellant & to proceed further in accordance with the law. No order as to costs. ============= Document 1 GUARANTOR'S FORM (FOR CORPORATE) We request you to grant the Loan as requested by the Barrower as per the terms and conditions mentioned in the Loan Agreement. In order to enable you to do so we make the following representations and furnish, the following particulars, which I warrant to be true and correct in every respecs. We understand the same are required for evaluation of the Borrower's proposal and will be kept confidental for the above- mentioned purpose Name of the Company Vendaun Commic ent-1td. Auch Sign Mr. Vithaldus patel Office Address CB....
X X X X Extracts X X X X
X X X X Extracts X X X X
....D Ns at the requent of the Bonower, more party ciorbed and set out davne 23 (hereinafter refened t 2 . "Borrower) agreed to provide to the Bower a Laan for an amount vel out in Cause 23 (hereafter refered to as "Loen de Laan Agreement de tout in 21 ates referred "Agreement" The Loan is to bo utbed by the dontway for the out Case 21 Inse of the agreement the end to gaze the repayed by the Sower of the LOAN and ad cones dues and outstanding and also grates the due observance of the rees and conscions of the Agreement by the rower The Guaraniora Denector, Parter Group Coreanocare of the tonover at stout in Cuse 25 NOW, THEREFORE, THIS GUARANTEE WITNESSETH AS UNDER: The Guaratur parsvices and socknowledges as under t 2 4. a. The Guarantora DecorParseup Company Assocute of the borrow as set als 21. INTEC CAPITA LIMITED is the request of the Borrow and the Gaas, agreed to provade LOAN to the Borrower The Curator, in consideration of INTEC CAPITAL LIMETEO proves the LOL harely greet the due pefanor and caenance sy se Gomover of as the terms and conceons of the Agreemers and agrees to pay on first demand any moneys ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... payments made by BC CAPITAL LIMITED in respect of 12. Any communication) sent by INTEC CAPITAL LIMITED to the Bower and vice versa at the charge of Registered AD communication courier receipt for vand service. The caramunicatory notice ex shat te dored to tap been reched when sert by ma-3 days after the date of posting or win 48 hours after patch by regered part, when personaty delivered on recept of the same as the address of the party, whas set by recupe copt of conferation. Any hangs in the address shall be duly retired in wing to the other party within 7 days of such 13 The Garar futher agrees and undertakes to do all such accent things) and to execute such cecances desceable in or other writings, as INTEC CAPITAL LIMITED may ta diren dewane fans time to dine or coraldar necessary to seegarden to Author secure the repayment of the LOAN and oder es under the greenest The Guarar o peste sige and exec documents and deets as may be required by INTEC CAPITAL LIMITED 14. The Guarantor contres and accepts that any default by the Borrower under the Agery other agresors with INTEC CARTAL LIMITED OF other Randal ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Capil 8.6 TRUE COPY Intec DELHI VandaPad W Document 4 170 THE UNDERTAKING Dees of Grace Ma 10/915 301h2 Exccused by meus dated princeel te Cantee Choquess of Donewar from sec Capital United thevestar referred to as " DOCK & POCATE THE repayment of the Losty aveled or to be availed by the towe do hereby futher evocably and unconscional quotes and we the guarantee cheques as a security for due performance on of a dues, obloanone convendrents notes to also chasing any Suem cue by the Borrower to Entec under the above Loan Agreement. we further agree and cone that the cheques De oven as a security for measing or unga the duas ad commitments of the Borrower as directed and decided by Indes, with no reference to the Borrower We hereby authorize beter to rent the Loan facility under the Loan Agreement No. in case of there is any dealt made by the domower in repayment of s Watry undertake That we chat at doc and rest presentation of the mentioned Cheque) in your bank hat honor domer, predicat or contestation and without any reference to use borrower and notwithstanding arg contestation by the Borrower.....