TaxTMI 
TaxTMI 
2024 (11) TMI 1286
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....ratories Ltd. (Operational Creditor), against the order dated 21.11.2023, passed by the Adjudicating Authority (National Company Law Tribunal, Mumbai Bench) by which I.A. No. 2044 of 2022, filed under Section 60(5) of the Insolvency and Bankruptcy Code, 2016 (in short 'Code') by Mr. Mayank Shah (Intervenor) in CP (IB) No. 794/MB/2022, filed by the Operational Creditor for initiation of Personal Insolvency Resolution Process (in short 'PIRP') in the matter of Mr. Praful Nanji Satra (Personal Guarantor/Corporate Debtor) under Section 95 of the Code, has been disposed of and CP (IB) No. 794 of 2022 has been dismissed. Besides that the Adjudicating Authority has imposed a cost of Rs. 5,00,000/- upon the Appellant on the ground that CP (IB) No. ....
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....f the post be delivered at such address. It is agreed that the Neon may in its sole discretion invoke this Guarantee." 4. Mr. Mayank Shah (Intervenor/Respondent No. 1) filed an Arbitration Petition No. 304 of 2021 before the Hon'ble Bombay High Court under Section 9 of the Arbitration and Conciliation Act, 1996 (in short 'Act'), inter alia, for depositing the claim amount of Rs. 131,02,82,634/-. 5. It is alleged that when the arbitration petition, filed by Respondent No. 1, was at the stage of passing of the orders against Respondent No. 2 (personal guarantor/debtor), the Appellant filed a petition under Section 95 of the Code and in view of Section 96 of the Code, interim moratorium became operative and the arbitration proceedings were ....
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....er alia, on the ground that not only the petition filed under Section 95 was premature because it was agreed between the parties, in terms of the personal guarantee dated 27.07.2011, that the Guarantor shall pay to the Lender the amount duly payable within 60 days from the date of demand notice served by the Lender requiring payment of the amount and the alleged demand notice was issued on 01.11.2021, treated as notice of invocation of guarantee and the petition was filed on 02.12.2021 before the expiry of period of 60 days and hence, it was premature but also it has been found that the Appellant was in collusion with the CD in initiating the proceedings under Section 95 in order to stall the proceedings initiated by Respondent No. 1 under ....
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....2021 for passing of the orders but the Appellant issued a demand notice in Form B of back date i.e 01.11.2021 served upon Respondent No. 2 by hand and filed the application under Section 95 of the Code on 01.12.2021, two days before the date fixed by the Hon'ble High Court in the arbitration proceedings i.e. 03.12.2021, as a result thereof, the proceedings pending before the Hon'ble High Court were adjourned sine die in view of Section 96 of the Code. It is further submitted that in the 11th meeting of the CoC of SPIL held on 26.08.2021, attended by all the Financial Creditors in which the Appellant was represented by Rakesh Parmar in his capacity as the director. Respondent No. 2 sought permission for submitting resolution plan before the ....
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.... within 60 days which means that the period of 60 days is provided to the personal guarantor from invocation of the guarantee by the lender. In case the amount is paid within this period then no petition under Section 95 could have been filed and in case the amount is not paid within 60 days, despite demand having been raised, the petition under Section 95 can be filed. 11. We have heard Counsel for the parties and perused the record with their able assistance. 12. The facts are not in dispute that a personal guarantee deed was executed on 27.07.2011 amongst the Appellant as a lender, SPIL as the Borrower and Respondent No. 2 as the Guarantor. Clause 3 of the said agreement categorically lays down that the Guarantor would pay the amount o....