TaxTMI 
TaxTMI 
2024 (2) TMI 1215
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of interest, cost, charges and other expenses in respect of Deed of Guarantee dated 15.03.2016 in favour of Applicant. 2. It is stated that the Respondent entered into a Deed of Guarantee, Agreement of hypothecation of goods and assets, Deed of Mortgage alongwith Working Capital Consortium Agreement was executed with the Financial Creditor on 15.03.2016. 3. By order dated 15.01.2019, the Corporate Debtor /Swastik Ceracon Limited was admitted and order of moratorium was passed by the Hon'ble Adjudicating Authority in CP IB No. 175/9/NCLT/AHM/2018. 4. Due to non-payment of the amount by the Corporate Debtor, the Financial Creditor has filed this application for initiation of Insolvency Resolution Process against the Guarantor under Section 95(1) of IBC, 2016. The Financial Creditor invoked the personal guarantee and issued demand notice to the Respondent on 22.09.2021 under Rule 7(1) of the Insolvency and Bankruptcy Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtors) Rules, 2019. The demand notice was delivered to the Respondent on 22.09.2021. 5. On presentation of the application by the Applicant/Financial Cr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the Respondent stating that the said property was already sold by the Debtor vide sale Deed dated 29th May, 2020 having no. 5212 of 2020, and an open land which was in the name of the Respondent was also sold by the respondent on 11th February, 2019 vide sale Deed no. 434 of 2019 dated 11th February 2019. d) The Respondent stated that the Respondent do not possess any assets other than a Swift Dezire car bearing registration No. GJ-09-AG-5205. e) The Respondent stated that the IRP have not verified the records and undertaking due diligence stated facts in the report hence the reports is required to be rejected. f) The Respondent states that the State Bank of India had already filed its claim for the dues before the Resolution Professional in the CIRP of the M/s. Swastik Ceracon Pvt. Ltd. CIRP is still pending before this Tribunal. 7. In response to the reply filed by the Respondent, the Applicant filed a Rejoinder dated 17.06.2022 under diary no. D3296 stating the following facts with regards to the objection raised by the Respondent. i. It is submitted that what so ever is stated in the Main Petition/ Form- C are true and same is not reiterated. ii. It is submitted....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rt before the this Tribunal has asked the personal guarantor to provide the requisite documents however the personal guarantor had chosen not to give a response and also failed to provide documents to the RP. It is further submitted that the respondent herein raises technical and baseless contention before this Tribunal for objecting to the captioned petition. It is submitted that the personal guarantor had not raised any objection with respect to the availing of the loan facility from the applicant, the fact of default occurred in the loan facility and the existence of a personal guarantor agreement. It is submitted the respondent had executed a personal guarantee agreement against the loan taken by the corporate debtor company and therefore the applicant has the statutory right to prefer the application under Section 95(4) of Insolvency and Bankruptcy Code, 2016. v. It is submitted that the annexure attached with the reply at Annexure A may not be considered by this Tribunal as it is filed in vernacular language. It is submitted that as per NCLT and IBC rules, "...every pleading presented to the Hon'ble Tribunal shall be in English and in case it is in some other Indian La....
X X X X Extracts X X X X
X X X X Extracts X X X X
....insolvency resolution and to seek information on matters relevant to the application in order to facilitate the submission of the report recommending the acceptance or rejection of the application; v. There is no violation of natural justice under Section 95 to Section 100 of the IBC as the debtor is not deprived of an opportunity to participate in the process of the examination of the application by the resolution professional; vi. No judicial determination takes place until the adjudicating authority decides under Section 100 whether to accept or reject the application. The report of the resolution professional is only recommendatory in nature and hence does not bind the adjudicatory authority when it exercises its jurisdiction under Section 100; vii. The adjudicatory authority must observe the principles of natural justice when it exercises jurisdiction under Section 100 to determine whether to accept or reject the application; viii. The purpose of the interim moratorium under Section 96 is to protect the debtor from further legal proceedings; and ix. The provisions of Section 95 to Section 100 of the IBC are not unconstitutional as they do not violate Article 14 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r. II. The Resolution Professional viz., Mr. Sunil Kumar Kabra, having Registration No: IBBI/IPA-001/IPP01011/ 2017-2018/11662, office at Office No. 303, 3rd Floor, Reegus Business Centre, Above Mercedes Benz Showroom, New Citylight Road, Bharthana- Vesu, Surat, 395007, Gujarat (e-mail id [email protected]] who was appointed when the Section 97 application was allowed vide Order dated 01.12.2021, is directed to cause a public notice published on behalf of the Adjudicating Authority within 7 days of passing this Order on the website of the NCLT Ahmedabad Bench, inviting claims from all Creditors, within 21 days of such issue The notice under Sub Section (1) of Section 102(2) shall include: - a) details of the order admitting the application; b) particulars of the resolution professional with whom the claims are to be registered; and c) the last date for submission of claims. III. The publication of notice shall be made in two newspapers, one in English and other in Vernacular which have wide circulation in the State where the Corporate Debtor and Personal Guarantor resides. The Resolution Professional shall furnish two spare copies of the notice to the Registry for the r....