TaxTMI 
TaxTMI 
2026 (8) TMI 861
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....uptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtors) Rules, 2019 ("Rules"), and initiated the Insolvency Resolution Process against the Appellant herein, who is the Personal Guarantor of Nyka Steels Private Limited ("Corporate Debtor / Principal Borrower"). Pursuant thereto, the Ld. Adjudicating Authority declared a moratorium under Section 101 of the Code and appointed Mr. Atul Narayan Naik as the Resolution Professional ("Respondent No. 2"). The Ld. Adjudicating Authority passed the Impugned Order while relying on a report filed by Respondent No. 2 under Section 99 of the Code. 2. It was argued by the appellant, the Respondent No. 1 vide Sanction Letter dated 12.04.2018, approved renewal and enhancement of credit facilities to the Corporate Debtor but no fresh Deed of Personal Guarantee was ever executed pursuant to the Sanction Letter dated 12.04.2018. Though the Respondent No. 1 rather alleged the account was classified as Non Performing Asset ("NPA") on 18.01.2020 with effect from 30.09.2019, but the statement of account reflect continued servicing, charging and collection of interest and payments even ....
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....ord; suffers from non-consideration of objections, mechanical acceptance of the report under Section 99 of the Code and is liable to be set aside. 4. Heard 5. The Ld. NCLT had passed the following order:- 13. The Corporate Debtor is already undergoing CIRP before this Tribunal. In view of Section 60(2), proceedings against the Personal Guarantor must lie before the same Adjudicating Authority. Also, the Petition has been filed in the prescribed Form C, accompanied by requisite documents, and the Resolution Professional has submitted a report under Section 99 recommending admission. Accordingly, the Petition is maintainable. 14. It is contended by the Respondent that the financial creditor has not followed RBI master circular dated 17.03.2016 to provide timely rehabilitation/provisions before classifying the account of principal borrower as NPA, however, It can also not be said that even if a lender fails to take recourse to Notification dated 29.5.2015, the existence of default vanishes and it is precluded from initiating Insolvency Resolution process in terms of provisions of IB Code. Further, the restructuring contemplated in para 5(4) of the notification ....
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....ntee was invoked in terms of recall notice dated 18.1.2020, the issuance of subsequent notice dated 31.8.2024 u/s. 13(2) of SARFAESI Act is not of much importance. Nonetheless, if the respondent's contention of non-service of recall notice is accepted at its face, the said notice in itself constitutes valid invocation of guarantee and the issuance of such notice without restoration of possession of properties to the corporate debtor in terms of order dated 24.11.2022 passed by DRT-2, Mumbai, in SA No. 21 of 2022, quashing the first notice dated 29.01.2020 issued under Section 13(2) of the SARFAESI Act, 2002 does not vitiate the said notice qua him as both the proceedings are distinct and independent. Further, the issuance of notice dated 20.08.2020 under Section 13(4) of the SARFAESI Act, 2002, is irrelevant to the present petition, as these proceedings are dependent merely on existence of a debt and default in payment thereof, while section 13(4) notice seeks possession of mortgaged properties. 19. No provision in the code invalidates an application filed under section 95 merely because prior to said filing, two demand notices were sent by the Applicant under Rule 7 of th....
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....payable by the Customers to the Bank on any account whatsoever with interest and all costs and charges and expenses and shall remain in full force until three calendar months after I/We shall have given or sent to the Bank notice in writing of my / our Intention to discontinue and determine these present and shall have paid to the Bank all moneys upto the limit of my / our liability due, at the expiration of such notice and in the event of my / all or any of us dying or being under any legal disability the liability of the survivors or survivor of us and of the estate(s) and executors, administrators or legal representatives of the deceased guarantor shall continue until the expiry of three calendar months' notice in writing given to the Bank by such survivors or survivor and the executors, administrators, or legal representatives of such deceased guarantor to determine these presents and payment of all moneys due to the Bank and the Bank shall be at liberty on receipt of such notice at any time within the said period of three calendar months to open a fresh account." Hence, the said guarantee is a continuing one. 6. We have also gone through the arguments advanced by b....