9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (2) TMI 379 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate debtor failed to make repayment of its debt - existence of debt and dispute or not - HELD THAT - There is overwhelming evidence to prove default and the defense which has been taken by the Corporate Debtor is rather evasive in nature. It is pertinent to mention that the Corporate Debtor as such in his pleadings has nowhere disputed or denied the claims made by the FC. Also taking into consideration Section 128 of the Indian Contract Act, the liability of the guarantor is co-extensive with the liability of the principal debtor and the same can be invoked without exhausting the remedies against the Principal Debtor. The application deserves to be admitted - application admitted - moratorium declared.
Issues:
Initiation of Corporate Insolvency Resolution Process under Section 7 of IBC based on default in payment by the Corporate Debtor. Detailed Analysis: 1. Initiation of CIRP: The Applicant, a Financial Creditor (FC), filed an application under Section 7 of the Insolvency and Bankruptcy Code, 2016, seeking the initiation of Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor (CD) due to default in payment. The FC extended a trade finance facility to the Principal Borrower, with the CD acting as a guarantor. Upon default by the Principal Borrower, the FC invoked the corporate guarantee and issued a notice to the CD for payment. The total default amount claimed was specified in the application. 2. Existence of Financial Debt: The FC provided various documents as evidence of the financial debt, including the facility letter, factoring agreement, corporate guarantee, funds in use statement, demand notices, and reply notices. These documents established the terms and conditions of the financial facility and the subsequent default by the Principal Borrower, leading to the invocation of the corporate guarantee. 3. Contentions of the Corporate Debtor: The CD disputed the invocation of the corporate guarantee, citing a tripartite arrangement with third parties and ongoing civil proceedings. The CD argued that the FC prematurely invoked the guarantee and that the liability of the guarantor arises only upon default by the Principal Borrower. The CD also claimed that the subsidiary had no liability towards the FC or the approved debtor, emphasizing the existence of disputes and denying the claims made by the FC. 4. Legal Analysis and Decision: The Tribunal analyzed the arguments presented by both parties and found that the FC had fulfilled all requirements under Section 7 of the IBC for initiating CIRP. It noted that the liability of the guarantor is co-extensive with that of the principal debtor, allowing for the invocation of the guarantee without exhausting remedies against the principal debtor. The Tribunal appointed an Insolvency Resolution Professional (IRP) and imposed a moratorium on the CD, suspending certain actions and directing essential supplies to continue during the moratorium period. The Board of Directors of the CD was suspended, and the order was communicated to the parties involved as per the provisions of the IBC. 5. Conclusion: The Tribunal admitted the application for CIRP against the CD based on the default in payment, appointing the IRP and imposing a moratorium to facilitate the resolution process. The decision was made in accordance with the provisions of the IBC and aimed at resolving the financial distress faced by the parties involved.
|
