TaxTMI 
TaxTMI 
2009 (12) TMI 1065
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....s Short Term to Medium Term working capital requirement. 4. On 27.9.2001, a Finance Agreement executed between the plaintiffs and the company. The plaintiffs duly advanced to the Company Rs. 14 crores. The defendant and her husband Shri Venkatesh was the promoter/ director of the Company. 5. On 21.09.2002, a Deed of Confirmation was executed between the plaintiffs and the Company modifying certain terms and conditions of the facility granted to the company which was also signed by late Shri Venkatesh Lakshman Prabhu, Managing Director of the Company as a Guarantor. The Managing Director of the Company late Shri Venkatesh Prabhu expired. 6. On 15.03.2003, the defendant executed a Personal Guarantee in favour of the plaintiffs guaranteeing the due repayment of the amount advanced by the plaintiffs to the company. 7. On 30.01.2006 the plaintiffs addressed a Demand Notice inter alia to the defendant and the company calling upon them to make payment of their outstanding dues under the facility and invoked the Guarantee given by the defendant. 8. On 10.03.2006, the said Notice was replied by Company's Advocate informing the company that the company had initiated a dial....
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....l amount not exceeding Rs. 140,000,000/, alongwith interest and other monies payable by the Borrower as per the said Agreement and/or as per the relevant Bills of Exchange or Promissory Notes towards the outstanding principal amount and interest and other monies and such other costs, charges and expenses which may become due and payable at any point in time, even if the Borrower in any way refuses, defaults, denies, disputes or fails to pay/reimburse the due amounts to the Guarantor or to IL&FS or otherwise. (3) This Guarantee shall be subject to the following general conditions: (i) The Guarantor's obligation to pay is to arise first when notice in writing is given by IL&FS and/or its successors, agents, trustees, nominees or assigns requiring the Guarantor to make payment hereunder and after such notice is given by IL&FS, IL&FS may if necessary proceeding to enforce the Guarantor's obligations and liabilities hereunder without first proceeding against and resorting to all or any of IL&FS's remedies against the Borrower. (ii) The Guarantor hereby confirms and declares that notwithstanding anything between the Borrower and the Guarantor, the G....
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....ted. The Annual Accounts for the years 200405, 200506 and 200607 are annexed to the Affidavit in support of Notice of Motion No. 360 of 2009. The Balance Sheet of 200405 admits that two amounts of Rs. 1.9187 crores and Rs. 8.6 crores (towards the suit claim) are payable to the plaintiff. The aggregate of these two amounts being Rs. 10,51,86,591 is admitted as outstanding and payable to the plaintiff. It is further stated that the said amount is "secured by ... personal guarantees of directors". These accounts have been duly signed by the defendant. These admissions have been repeated in the subsequent Balance Sheets for the years 1005-06, 2006-07, 2007-08. 15 In light of the persistent defaults, the plaintiff by letter dated 30th January, 2006 invoked the guarantee and called upon the defendant to pay the outstanding amounts. The Company responded by a letter dated 10th March, 2006 wherein it did not dispute its liability and merely requested the plaintiff not to initiate action since it was trying to restructure its debts. The plaintiff therefore did not precipitate matters. The Company however made no payment whatsoever. 16. Admittedly, the defendant has not disputed the le....
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.... (supra) 20. The contention based upon the order 29 Rule 1 of the Code of Civil Procedure (CPC) has no force. The suit has been signed and verified by Mr. Nitin Lokhande, Vice President, Legal of the plaintiff who is clearly a principal officer of the defendant. He also conversant with the facts of the case from the papers and documents available with the plaintiffs. Even otherwise, they have filed an additional affidavit dated 6th November, 2009 and thereby even removed the technical objection, so raised with regard to the authorization. The Apex Court has observed in United Bank of India v. Naresh Kumar and Ors. AIR 1997 S.C. 3, that such a technical reason as a plaint is not signed by competent person which does not go to the root of the matter and even if any, such defects are curable basically in a suit filed by a bank for recovery of the amount from the borrower, as well as, the guarantors. 21. The submission with regard to the Bombay Stamp Act, has also no force. The suit is based on the guarantee. There is no serious dispute about the guarantee and its terms. The lending of money is not in dispute. In view of article 5(h) of Schedule I of the Bombay Stamp Act, when th....