2022 (5) TMI 578 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP against the respondent/guarantor - Corporate Debtor failed to make repayment of its dues - Personal Guarantors to Corporate Debtors - existence of debt and dispute or not - HELD THAT - It is made known to everyone that on filing this Application by the Applicant/Creditor the interim-moratorium commences in terms of section 96(1)(a) of IBC, 2016. The Applicant/Creditor has proposed name of Mr. Neeraj Kumar Sureka, an Insolvency Professional, having Registration No. IBBI/IPA-001/IP-P01539/2019-2020/12517, of Central Plaza , 6th Floor, Room No. H, 41, B.B. Ganguly Street, Kolkata 700012, West Bengal for appointment as Resolution Professional - The Resolution Professional shall exercise all the powers as enumerated under section 99 of the IBC, 2016 read with the Rules made thereunder. List this matter on 06/06/2022.

Summary

Issues involved:
Initiation of insolvency resolution process against a personal guarantor under the Insolvency and Bankruptcy Code, 2016.

Detailed Analysis:

1. Application under IBC, 2016 and related rules:
The case involves an application filed under section 95(1) of the Insolvency and Bankruptcy Code, 2016, along with relevant rules and regulations, seeking to initiate the Insolvency Resolution Process against a personal guarantor for a corporate debtor. The applicant, a banking company, extended credit facilities to the principal borrower, and the personal guarantor executed deeds of guarantees for the repayment of loans. Due to non-compliance by the corporate debtor, the loan accounts were classified as NPA. The applicant had previously taken legal actions against the guarantors, and the corporate debtor went into liquidation after being admitted under the Corporate Insolvency Resolution Process (CIRP).

2. Execution of personal guarantee and demand notice:
The personal guarantor executed a personal guarantee in favor of the applicant to secure repayment of the credit facilities. A demand notice was issued under the relevant rules, but the guarantor failed to pay the amount recalled by the financial creditor. Consequently, the applicant sought the initiation of the insolvency resolution process against the guarantor.

3. Appointment of Resolution Professional:
The applicant proposed the appointment of an Insolvency Professional as the Resolution Professional, who consented to the appointment. The Resolution Professional was directed to file a declaration confirming eligibility within seven days. The Resolution Professional was granted powers as per the Insolvency and Bankruptcy Code, 2016, to make recommendations on the application and provide a report to the Adjudicating Authority.

4. Procedural directions and future listing:
The Counsel for the Applicant was directed to serve the order and related documents on the Resolution Professional for compliance. The matter was listed for further proceedings on a specified date. The Registry was instructed to send copies of the order to all parties and their respective counsels. Additionally, the issuance of a certified copy of the order was subject to compliance with formalities.

This detailed analysis of the judgment highlights the legal proceedings, the grounds for initiating the insolvency resolution process against the personal guarantor, the appointment of the Resolution Professional, and the procedural directions for future compliance and listing of the matter.