TaxTMI 
TaxTMI 
2018 (9) TMI 2132
X X X X Extracts X X X X
X X X X Extracts X X X X
....nished Form No. 1 under Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (hereinafter as Rules) in the capacity of "Financial Creditor" on 05.04.2018 by invoking the provisions of Section 7 of the Insolvency and Bankruptcy Code (hereinafter as Code). 2. Further under the head "Particulars of Corporate Debtor/Co-obligor" the description of the Debtor/Co-obligor is stated as 'M/s. Trend Electronics Limited' (hereinafter as Debtor/Co-obligor) having Registered office at, 'Gangapur GIN. Compound Station Road, Station Road. Ahmednagar, Maharashtra - 414001'. 3. In the requisite Form, under the head "Particulars of Financial Debt" the total amount of Debt in default is stated as (??....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n facilities the Financial Creditor has filed Insolvency Petition/Application against each of the Company praying for the commencement of the CIRP. The Petition/Application against principal borrower was filed on 01.01.2018 and thereafter this Petition/Application has been filed. 5. Submissions by the Financial Creditor: 5.1. The Learned Sr. Counsel for the Financial Creditor has submitted that pursuant to the request of the VIL along-with the Debtor/Co-obligor, the Financial Creditor has duly sanctioned and disbursed the loan amount in aforesaid manner. 5.2. It is further submitted that the Insolvency Petition/Application against the VIL was Admitted for the commencement of the CIRP by this very Bench on 06.06.2018. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... by the Order dated 06.06.2018 there cannot be initiation of CIRP against this Debtor/Co-obligor for the same debt amount. 6.6. It is also submitted that, since the Financial Creditor has proposed the different IRP's for each of 12 co-obligors, whereas the assets of the VIL and the Co-obligors are common, hence it will be difficult to conduct the CIRP. 6.7. In light of above submissions the Learned Advocate has vehemently pleaded that this Petition/Application is not maintainable under the provisions of the Code. 7. Findings: 7.1. The Bench has gone through the submissions made by both the sides and also perused the documents on record. The Bench also carefully perused the decisions of various Courts cited ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rder for Liquidation in the case of Principal Borrower hence, as regards to the submissions made by the Learned Advocate for the Debtor/Co-obligor about Discharge of Surety it is worth to place on record the legal position that, the surety is discharged as soon as the Principal Borrower is discharged from his liabilities. It is noticed that in the Insolvency Proceedings the discharge of the liabilities of Principal Borrower happens at the time of approval of Resolution Plan and the Debt of the Principal Borrower is not discharged in absence of the Resolution Plan in the case of Principal Borrower. And therefore the provisions of the S. 134 of the Indian Contract Act, 1872 cannot be applied upon the Debtor/Co-obligor. If the Resolution Plan ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as preferred the similar arguments which are preferred before this Bench and the same had been dealt by the co-ordinate Benches. 7.11. Hence, for the reasons mentioned herein above there is no cause for dissenting from the co-ordinate Benches and therefore in my opinion this Petition/Application deserves to be Admitted. 7.12. Further, before passing a concluding remark we want to place a reliance on the decision of the Hon'ble NCLAT in State Bank of India v. D.S. Rajendra Kumar (Company Appeal (AT) (Insolvency) No. 87 of 2018) dated 18.04.2018 wherein it is held as under: "5.....However, it is made clear that order of 'Moratorium ' will be applicable only to the proceedings against the 'Corporate D....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eding pending against the proposed IP, the Insolvency Professional proposed by the Financial Creditor, Mr. Avil Menezes, O/at. 403, Crescent Business Park, Sakinaka, Andheri (E), Mumbai, Maharashtra - 400072, having registration No. IBBI/IPA-001/IP-P00017/2016-17/10041, having E-mail address as, [email protected] is appointed as Interim Resolution Professional to conduct the Insolvency Resolution Process. 7.16. Having admitted the Application, the provisions of Moratorium as prescribed under Section 14 of the Code shall be operative henceforth with effect from the date of order shall be applicable by prohibiting institution of any Suit before a Court of Law, transferring/encumbering any of the assets of the Debtor/Co-obligor etc. How....