TaxTMI 
TaxTMI 
2022 (7) TMI 770
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....r Insolvency Resolution Process for Personal Guarantor to Corporate Debtor) Rules, 2019. The prayer made is to initiate the Insolvency Resolution Process against the Respondent/Guarantor Mr. Nawal Kishore Saxena, who stood as Personal Guarantor to the various credit facilities availed by the Corporate Debtor namely M/s. Zillion Infra projects Pvt. Ltd. for total outstanding debt of Rs. 90,73,78,607.30 (Principal amount about Rs. 52 crores plus interest). 2. On presentation of the application, this Tribunal vide order dated 09.05.2022 appointed the Resolution Professional Mr. Rakesh Kumar Gupta, to file report under Section 99 of the Code, which has been filed through IA-2497/2022 in CP. No. IB-745(PB)/2021. 3. The applicant State Bank....
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.... and same is pending for approval before this Adjudicating Authority. 6. Further by virtue of deed of guarantee duly executed by Respondent/Guarantor Mr. Nawal Kishore Saxena in order to secure the facility sanctioned and granted to the Corporate Debtor M/s. Zillion Infra projects Pvt. Ltd., the guarantor Mr. Nawal Kishore Saxena is jointly and severally liable for the dues of the Corporate Debtor. 7. It is further submitted that the said guarantee was invoked by the State Bank of India against the Personal Guarantor/Respondent vide issuance of Demand Notice dated 09.09.2021 under clause (b) of Section 95(4) issued in Form-B, under Rule 7(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolut....
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....e 7 of the Rules, 2019 has been filed. 11. In the application reliance has been placed on the documents appended including copy of deed of Personal Guarantee dated 09.09.2016 (Pages 217-241) and copy of letter of confirmation by the Personal Guarantors dated 25.04.2017 by the Guarantors including Mr. Nawal Kishore Saxena (pages 307 and 308). As per this letter, the Respondent/Guarantor has agreed that the said guarantees are continuing one and have been executed to secure the entire working capital facilities. Clause 13 of the deed of Personal Guarantee dated 09.09.2016 reads as follows: "13. Continuing Guarantee: This Guarantee shall be a continuing one and shall remain in full force and effect till such time the Borrower repay....
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....at the principal amount as per loan statement attached with the application depicts Rs. 45,67,30,046.83 whereas the amount mentioned in Part-III (Pg 24) of the application claims principal amount of Rs. 52,05,62,213.80. iv. The guarantor has stated that the amount cannot be claimed from them as the Bank is a part of CoC which has approved the Resolution Plan of the CD and the plan is pending for the approval of this Adjudicating Authority and have also relied upon the judgment of DRT Ahmedabad dated 11.03.2022 in the matter of M/s. Arcelor Mittal India Pvt. Ltd. vs. SBI and Others bearing OA/650/2018, wherein, it was held that, to invoke personal guarantees by a secured creditor, underlying debt due from the borrower acts as a prec....
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....ble Supreme Court (in suo moto writ petition 3/2020) vide order dated 10.01.2022 has excluded the period from 15.03.2020 till 28.02.2022 for the purposes of limitation. 18. Further, the Resolution Professional has stated that the liability of the guarantor is coextensive with the Principal Debtor and Guarantee is continuing Guarantee in terms of clause 13 of the deed of Guarantee dated 09.09.2016. As regards the objection that SBI has no locus standi as the guarantee deed was signed with SBI CAP Trustee Co. Ltd. and not the SBI, the contention of the Respondent is incorrect, as per clause 15 of the Deed of Personal Guarantee dated 09.09.2016, the rights under the guarantee can be invoked jointly and/or severally by the lenders and the Gu....
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....urse of hearing, the application bearing No. CP-IB-745(PB)/2021 is hereby admitted under Section 100 of the IB Code, 2016. The Insolvency Resolution Process is initiated against the Respondent/Guarantor and the moratorium is declared, which begins with the date of admission of the application and shall cease to have effect at the end of the period of the 180 days, as provided Under Section 101 of the Code. During the Moratorium Period: a. Any pending legal action or proceeding in respect of any debt shall be deemed to have been stayed; and b. The creditors of the debtor shall not initiate any legal action or proceedings in respect of any debt; and c. The debtor shall not transfer, alienate, encumber, or dispose of....