TaxTMI 
TaxTMI 
2022 (5) TMI 1310
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.... Code, 2016 by Ashish Vincom Private Limited, incorporated on 17 April 2007 under the Companies Act, 2013, represented by Ms. Alka Agarwal, Director of Ashish Vincom Private Limited, authorized through a Board Resolution dated 26 April 2019, seeking to initiate Corporate Insolvency Resolution Process ("CIRP") against Amolika Agro India Private Limited ("Corporate Debtor"). 3. The Corporate Debtor is a Company limited by shares and was incorporated on 18 September 2013, having CIN: U01403JH2013PTC001628. Its registered office is Ranishwar, Sub-Division-Dumka, Dumka-814148, Jharkhand. Therefore, this Bench has jurisdiction to deal with this petition. 4. The present petition was filed on 28 June 2019 before this Adjudicating Authority on....
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....ection 140 of the Indian Contract Act, 1872 and submitted that the Financial Creditor is now invested with the rights of a Creditor and the Corporate Debtor is liable to repay the amount that was encashed by the State Bank of India. 9. The Financial Creditor has placed the following documents on record: a. Copy of Form No. CHG-1; b. Copies of Bank Statements; 10. During the course of the hearing, it was seen that Mr. Ashok Kumar Agarwal was a common Director for the Financial Creditor and the Corporate Debtor. The Financial Creditor filed a supplementary Affidavit on 11 February 2020 wherein the Financial Creditor submitted that Mr. Ashok Kumar Agarwal had resigned from the post of Director in the Board of Management....
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....n contract reflecting that the Corporate Debtor had agreed to pay the interest. 16. The Company Petition has been filed as a tool for recovery of money and the Financial Creditor is using the Code as an arm twisting method. 17. The Corporate Guarantee was given on its own volition and one of the Directors of the Corporate Debtor viz. Mr. Ashok Kumar Agarwal is also the Director of the Financial Creditor. The present Company Petition is nothing but a gambit in the hand of Mr. Ashok Kumar Agarwal to settle personal scores. 18. Mr. Ashok Kumar Agarwal claims to have resigned for the Directorship of the Management of the Board on 30 June 2015, but no DIR 11 was filed with the Registrar of Companies to intimate his resignation. No such ....
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....s any counter-indemnity obligation in respect of guarantee etc. There is no need for a contract between the Guarantor and Corporate Debtor. 23. There is an implied promise on the part of the Corporate Debtor to indemnify the Financial Creditor as envisaged in section 145 of the Indian Contract Act, 1872. 24. Mr. Banerjee submitted that Phoenix ARC (supra.) can be distinguished on the ground that there is a pledge created in favour of an Asset Reconstruction Company. Analysis and Findings 25. Heard the learned Counsel appearing for the Financial Creditor and the learned Counsel appearing for the Corporate Debtor and perused the record. 26. The main defense taken by the Corporate Debtor is that the debt does not fall within the....
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....nd the Financial Creditor. Hence, there is a debt that is apparent on record and there was a default with respect to the State Bank of India, but once the guarantees were invoked, no notice was given to the Corporate Debtor. 31. We will not delve into the question as to the resignation of Mr. Ashok Kumar Agarwal from the post of Directorship at present. But the point that baffles us, at this point, is the last line in the letter of resignation which was annexed to the supplementary affidavit dated 10 February 2020, filed by the Financial Creditor, wherein it is stated: "Further as discussed, I request you to get my personal guarantee released from SBI immediately for which henceforth, I would not be liable in any manner whatsoev....