2021 (9) TMI 1323 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - personal guarantor - existence of debt and default or not - HELD THAT - The Bench has no doubt in its mind that there is a default on the part of the Personal Guarantor by not fulfilling the debt owed to the Corporate Debtor, i.e., Anoushka Medicare Diagnostics Private Limited as per the Deed of Personal Guarantee entered between the parties through the Deed of Personal Guarantee dated 01.08.2017. This Bench Allows the Application filed by Sudha Bhushan, Insolvency Resolution Professional on behalf of Finquest Financial Solutions Private Limited, the Financial Creditor, under Section 95 of the Insolvency Bankruptcy Code, 2016 read with Rule 7 of the IBC Rules 2019 against Mrs. Kanchan Nanubhai Desai, the Personal Guarantor of the Corporate Debtor, Anoushka Medicare Diagnostics Private Limited in CP No. 457/2020. The Bench makes it clear that from the date of filing this Application i.e. 31.01.2020 by the Petitioner, Interim Moratorium commences as stipulated under Section 96(1) of the Code in relation to all the debts of the Personal Guarantor - List the matter for further hearing along with IA 2495 of 2020 on 02.11.2021.

Summary

Issues Involved:
1. Filing of petition under Section 95 of the I & B Code against a Personal Guarantor.
2. Default by the Personal Guarantor in fulfilling debt obligations.
3. Consideration of Personal Guarantee deed and demand notice.
4. Commencement of Interim Moratorium and its implications.
5. Appointment and powers of Resolution Professional.

Analysis:

1. The petition was filed under Section 95 of the I & B Code against a Personal Guarantor, who had provided a Personal Guarantee to the Corporate Debtor. The Resolution Professional (RP) filed the petition on behalf of the Creditor, seeking recovery of the outstanding debt.

2. The Bench noted that the Personal Guarantor had defaulted in fulfilling the debt owed to the Corporate Debtor as per the terms of the Personal Guarantee deed. Despite arguments from the Personal Guarantor, the Bench rejected their contentions and found a clear default.

3. The consideration of the Personal Guarantee deed and the demand notice issued by the Financial Creditor were crucial in establishing the default by the Personal Guarantor. The total debt owed, including interest, was clearly stated in the petition and formed the basis for the legal proceedings.

4. The Interim Moratorium was initiated from the date of filing the application by the Financial Creditor. This moratorium stayed any legal actions or proceedings related to the debt owed by the Personal Guarantor, providing protection to the assets and preventing creditors from initiating legal actions during this period.

5. The appointment of the Resolution Professional was confirmed by the Bench, emphasizing the critical role of the RP in managing the proceedings and safeguarding the interests of all parties involved. The RP was directed to exercise powers as per the Code and provide recommendations on the application within the stipulated time.

In conclusion, the judgment allowed the application against the Personal Guarantor, initiating the Interim Moratorium and confirming the appointment of the Resolution Professional to oversee the proceedings. The detailed analysis of the Personal Guarantee deed, default, and legal provisions under the I & B Code formed the basis for the decision, ensuring compliance with the relevant laws and regulations.