2022 (7) TMI 143

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.... State Bank of India under Section 95(1) of the Insolvency and Bankruptcy Code, 2016 (I & B Code, 2016) read with Rule 7(2) of the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtors) Rules, 2019 (Personal Guarantors Insolvency Rules) against Mr. Rajesh K.S., Mr. Satheesh Babu V.K., Mr. Saleesh K. Satheesh, Mrs. Bindya Saleesh, and Mrs. Sindhu Rajesh, Personal Guarantors of the Corporate Debtor M/s. Propyl Packaging Limited, for initiating Insolvency Resolution Process against them. The brief facts leading to the present Petitions are as under:- 3. The Corporate Insolvency Resolution Process has been initiated against the Corporate Debtor M/s. Propyl Packaging Limited pursuant to the order of this Tribunal dated 14.02.2020 in IBA/52/KOB/2019 and, thereafter, vide order dated 18.11.2021 in IA (IBC)/106/KOB/2021 the Corporate Debtor was put under liquidation, since no Resolution Plan was received from any prospective applicants. 4. The petitioner/Creditor has initially sanctioned an overdraft facility of Rs. 7.05 Crores as an International Letter of Credit Facility of Rs. 4.70 Crores to the....

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....h is pending before the DRT. 7. As of 14.02.2020, the total amount due under loan account Number 36446428466, 36446651063 and 36449727553 is Rs. 16,04,69,894/-. The petitioners have filed a claim before the Resolution Professional of Propyl Packaging Limited and RP has admitted the debt of Rs. 15,98,69,894/- claimed by the petitioners. 8. The demand notice dated 08.11.2021 was sent to the Respondents/Personal Guarantors on 09.11.2021. The Respondents/Personal Guarantors did not make payment even after receiving the notice. Since the Respondents, i.e., Mr. Rajesh K.S., Mr. Satheesh Babu V.K., Mr. Saleesh K. Satheesh, Mrs. Bindya Saleesh, and Mrs. Sindhu Rajesh in the capacity of personal guarantors failed and were unable to repay the debt, the petitioners filed these petitions to initiate Corporate Insolvency Resolution Process against them under Section 95(1) of Insolvency and Bankruptcy Code, 2016. Counter filed by Respondents: 9. The Respondents filed their counter and stated that the Petitioner's purported Demand notice dated 08.11.2021 is not valid as contemplated under Rule 7 of the Insolvency & Bankruptcy (Application to Adjudicating Authority for Insolvency Resolutio....

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....nt Bank did not initiate the Corporate Insolvency Resolution Process of the Corporate Debtor but an operational creditor M/s. Prayag Polytech Private Limited initiated CIRP against the Corporate Debtor M/s. Propyl Packaging Ltd., under Section 9 of the I & B Code, 2016. 14. The Respondent stated that the Corporate Debtor is under liquidation now, and the Petitioner Bank submitted their fresh claims before the Liquidator. Therefore, even at that juncture, a question of a 'default' defined under the I & B Code, 2016 does not arise. 15. The Respondent further stated that the Petitioner Bank Vide their demand notice dated 08.11.2021 and their application under Sec. 95 of the Code, 2016 has claimed the entire amount from each person named in the Guarantee Agreement dated 10.01.2017 individually. In the present case, the Petitioner seeks to initiate the Corporate Insolvency Resolution Process for the entire sum of Rs. 15,98,69,894/-- (Rupees Fifteen Crores Ninety-Eight Lakhs Sixty-Nine Thousand Eight Hundred Ninety-Four only), individually against each of the persons/guarantors and not against the co-sureties jointly. 16. It is also stated that the Respondents executed the gua....

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....,69,894/-. The amount is not disputed by the Corporate Debtor M/s. Propyl Packaging or by the above said guarantors and hence the requirement under Section 95(4) is satisfied. (b) The failure by the debtor to pay the debt within a period fourteen days from the service notice of demand. Demand notice dated 08.11.2021 under Section 95(4)(b) of 18C to the Personal Guarantors issued on 09.11.2021 by registered post as a precondition for filing application under Section 95(1). The demand notice was delivered on 11.11.2021. The Personal Guarantors have replied to the demand notice through his counsel challenging the maintainability of initiating personal guarantee during liquidation process, however not produced any evidence of repayment of debt as required under Section 95(4) (b) of the Code. (c) The relevant evidence of such default or non--payment of debt The applicant State Bank of India have provided me copy of the certificate issued under Bankers Book Of Evidence Act specifying the balance outstanding in the various loan accounts of M/s. Propyl Packaging Ltd. It is also confirmed by State Bank of India that no further payment was received either from M/s. Propyl Packaging L....

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....019 vide a Central Government notification. Section 179, subject to provisions of section 60, vests the jurisdiction in Debt Recovery Tribunals (DRTs) to entertain insolvency matters of partnership firms and individuals. Section 60 of the Code clearly states that in relation to insolvency resolution and liquidation of corporate persons, including personal guarantors to CDs, NCLT shall be the Adjudicating Authority ('AA). Therefore, when provisions of Section 60 are attracted, section 179 is rendered inapplicable. 23. From the report submitted by the Resolution Professional, there does not appear any request of the RP for issuance of the instructions for the purpose of conducting negotiations between the debtor and creditor for arriving at the repayment plan. Therefore, based on the reasons recorded in the report submitted by the Resolution Professional, the petitions i.e., CP(IBC)/15/KOB/2021, CP(IBC)/16/KOB/2021, CP(IBC)/17/KOB/2021, CP(IBC)/18/KOB/2021, and CP(IBC)/19/KOB/2021, filed under the provisions of Section 95 of IBC, 2016 is hereby ADMITTED under Section 100 of the IBC, 2016. The Insolvency Resolution Process is initiated against the Respondents/Personal Guarantors ....

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....27. The debtor shall prepare a repayment plan under Section 105, in consultation with the Resolution Professional, containing a proposal to the Creditors for restructuring of his debts or affairs. The repayment plan may authorize or require the Resolution Professional to:- (a) carry on the debtor's business or trade on his behalf or in his name; or (b) realise the assets of the debtor; or (c) administer or dispose of any funds of the debtor. The repayment plan shall include the following, namely;- (a) justification for preparation of such repayment plan and reasons on the basis of which the creditors may agree upon the plan; (b) provision for payment of fee to the Resolution Professional; (c) such other matters as may be specified. 28. The Resolution Professional shall submit the repayment plan along with his report on the plan to this Authority within a period of 21 days from the last date of submission of claims, as provided under Section 106. 29. In case the Resolution Professional recommends that a meeting of the creditors is not required to be called, he shall record the reasons thereof. If the Resolution Professional is of the opinion that a meeting of the ....