TaxTMI 
TaxTMI 
TaxTMI 
2022 (3) TMI 796
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....re amalgamated into the Petitioner. All the facilities granted and disbursed by UBI, E-Andhra Bank and E-Cooperation Bank considered to have been granted by UBI. 3. Facilities granted by UBI to DHFL: i. Consortium Agreement dated July 24, 2010 was entered into between DHFL and a consortium of banks including UBI and e-Corporation Bank with respect to term loans and cash credit facilities of total of INR 8713.89 crores. ii. First Supplemental Consortium Agreement date June 29, 2011 was entered into between DHFL and a consortium of banks including UBI, e-Andhra Bank and e-Corporate Bank with respect to revised credit facilities upto an aggregate of INR 13,782.69 crores. iii. Second Supplemental Consortium Agreement dated June 26, 2012 was entered into between DHFL and a consortium of banks including UBI, e-Andhra Bank and e-Corporate Bank with respect to revised credit facilities upto an aggregate of INR 18280.92 crores. iv. Third Supplemental Consortium Agreement dated June 20, 2013 was entered into between DHFL and a consortium of banks including UBI, e-Andhra Bank and e-Corporate Bank with respect to revised credit facilities upto an aggregate of INR 31,261 crores. v. F....
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....mance by DHFL of all DHFL's obligations under the Credit Facilities. iii. Demand made by the banks i.e. the consortium of banks including UBI, Andhra Bank and Corporation Bank would be conclusive and binding inter alia on the Respondent. iv. The liability of Mr. Kapil Wadhawan and Dheeraj Wadhawan under the Personal Guarantee is joint and several. v. The banks i.e. the consortium of banks including UBI, Andhra Bank and Corporation Bank shall be entitled to act as if the guarantor i.e. Mr. Kapil Wadhawan and Dheeraj Wadhawan are principal debtors to the said banks. vi. The Personal Guarantee is a continuing guarantee for all the amounts advanced by the banks i.e. the consortium of banks including UBI, Andhra Bank and Corporation Bank. 6. DHFL was admitted into CIRP on an application made by RBI on 03.12.2019 and appointed the Administrator Mr. Subramaniyam Kumar. Pursuant to the public announcement on 04.12.2019, UBI submitted its claim to the Administrator. The claims of UBI submitted and admitted by Administrator is amounting to the tune of Rs. 35,17,30,39,020/-. The breakdown of the claim is as follows: Name of Bank Amount claimed in Form C (INR Crores) Amount admitte....
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....r whom the guarantor is a personal guarantor. (4) In case of a joint application, the creditors may nominate one amongst themselves to act on behalf of all the creditors." 10. The demand notice sent via Indian Post at the Residential address of the Respondent and was duly delivered to the said address after 13.10.2021. The petitioner has filed affidavit of service to that effect. 11. The Petitioner submitted that the Respondent need not be heard at this stage. However, counsel for the Respondent submitted that the demand notice was returned to the Petitioner by Mr. Kartik Wadhwan. Reply of the Respondent: 12. The Respondent stated that he is an erstwhile director of Diwan Housing Corporation Limited and that he has been in Judicial custody pending investigation since April 2020. The Respondent further claimed that the Petitioner failed to serve the demand notice under Form B on the Respondent herein and had claimed that the Petition may be dismissed at the outset. 13. The Respondent relied upon the Insolvency and Bankruptcy Rules which define the term "Serve" as follows: "The Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process....
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.... Rules, which prescribes service to be carried out by Registered Post (without due acknowledgment). The Petitioner claims to have served Form B demand notice upon the Respondent and has filed affidavit of service. 20. The Respondent alleged that since he was in jail service of notices ought to have been followed as prescribed under Order 5 Rule 24 of CPC. Order 5 Rule 24 of CPC is reproduced below: "24. Service on defendant in prison.-Where the defendant is confined in a prison, the summons shall be delivered or sent 4 [or by post or by such courier service as may be approved by the High Court, by fax message or by Electronic Mail service or by any other means as may be provided by the rules made by the High Court] to the officer in charge of the prison for service on the defendant." Order 5 CPC provides for issuance and service of summons and Rule 24 specifically prescribes a procedure for service of summons to the defendant who is in jail. Therefore, we ought to distinguish between issuance of demand notice and service of summons on the defendants who is in jail. 21. This Bench is of the prima facie opinion that intention of legislature for issuance/ service of Form B notice....
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....pon the judgement of Hon'ble NCLAT in Ravi Ajit Kulkarni vs State Bank of India [(Company Appeal (AT) (Insolvency) No. 316 of 2021], wherein it was held at Para 22 that an Application u/s. 95 shall be filed post issuance of demand notice. The notice of demand was sought to be issued as per Rule 7 in Form-B and the service of notice to be affected as per Rule 3 (1) (g). Para 22, 23 and 24 of the Judgement is reproduced below: "22. Coming back to Section 95(4), the application under Section 95(1) needs to be accompanied with details and documents relating to (a) the debts owed by the Debtor to the Creditor or Creditors submitting the application for insolvency resolution process as on the date of application; and (b) the details and documents relating to failure by the debtor to pay the debt within a period of 14 days of service of notice of demand. The notice of demand as per Rule 7(1) has to be in Form C (supra). The service of notice has to be effected as per Rule 3(1)(g). "Service" has been defined in the Rules as follows: "(g) "serve" means sending any communication by any means, including registered post, speed post, courier or electronic means, which is capable of producin....
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.... in various decisions. Let us not refer to those decisions: (1) in case if J. K. Cotton Spinning and Weaving Mills reported in AIR 1961 SC 1170, the Supreme Court would make the following observations: 10. Applying this rule of construction that in cases of conflict between a specific provision and the general provision applies only to such cases which are not covered by the special provision... (2) in the case of Bharat Petroleum Corporation Ltd v. P. Kesavan reported in (2004) 9 SCC 772, the Supreme Court has held as follows: 15. the maxim "generalia specialibus non derogant" meaning thereby, that general things do not derogate special things, shall, thus, apply in the instant case and in that view of the matter, as admittedly, the Appellant herein ahs expressed its desire to renew the lease, Sub-Section (2) of Section 5 read with Sub-Section (3) of Section 7 thereof shall be attracted. (3) in the case of Kunwar Pat Singh (Dead) by Lrs. V. State of U.P., reported in (2007) 5 SCC 85, the Supreme Court would make the following observations: 16. Section 6(2), on plain reading, deals with the various modes of publication and they are (a) publication in the Official Gazette, (b....
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....when there is inability to serve of any notice, it can be overcome by affixing notice on the outer door. In strict interpretation of the Statute, this Bench concludes that the Form B notice served upon the address of the Respondent is a valid service of a demand notice which is a prerequisite for filing a Petition u/s. 95. The Petition u/s 95 was served upon the Respondent in jail. Hence, the objection raised by the Respondent is untenable and set aside. 26. This Bench "Allows" the Application filed by Mr. Santanu T. Ray, Insolvency Resolution Professional, on behalf of the Union Bank of India, Financial Creditor, under Section 95 of the Insolvency & Bankruptcy Code, 2016 read with Rule 7 of the IBC Rules 2019 against Mr. Dheeraj Wadhawan, the Personal Guarantor of the Corporate Debtor, K.K Welding Limited in CP No. 04 of 2021. 27. The Bench makes it clear that from the date of filing this Application, by the Petitioner, Interim Moratorium commences as stipulated under Section 96(1) of the Code in relation to all the debts of the Personal Guarantor. During the Interim Moratorium period: (i) any pending legal action or proceedings in respect of any debt shall be deemed to have bee....