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2022 (7) TMI 358 - Tri - Insolvency and BankruptcyMaintainability of application - Initiation of CIRP - Corporate Debtor failed to make repayment of its dues - demand was made on the personal guarantor - Financial Creditors - date of default - time limitation - HELD THAT - The Demand Notice issued under Rule 7(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtors) Rules, 2019 to the Personal Guarantor on 17.11.2021 - The date of default as mentioned in the application is 17.04.2016 and the Financial Creditor has also placed on file the Record of Default at Page Nos. 133 to 138 of the typed set. Hence, on this term, the present Petition is filed to initiate a proceeding in terms of Section 95 (1) of the IBC, 2016, against the Respondent herein. The Resolution Professional is required to examine the Application as set out in Section 97(6) of IBC, 2016 and after examining the Application, as per Section 97(7) of IBC, 2016 the Resolution Professional may recommend for the acceptance or rejection of the Application in his report, within a period of 10 days as contemplated under Section 99(1) of IBC, 2016. Post this matter on 28.07.2022 for filing of Report by the Interim Resolution Professional.
Issues:
1. Application filed under Section 95(1) of the Insolvency and Bankruptcy Code, 2016 against Personal Guarantors of Corporate Debtors under Liquidation. 2. Verification of demand, execution of Deed of Guarantee, and default date for initiating proceedings. 3. Notice sent to Respondent, ex-parte order, and principles of natural justice. 4. Appointment of Interim Resolution Professional and preparation of Report under Section 99 of IBC, 2016. Analysis: 1. The application was filed under Section 95(1) of the Insolvency and Bankruptcy Code, 2016 against the Personal Guarantors of two Corporate Debtors under Liquidation. Orders for Commencement of CIRP and subsequent Liquidation were passed for both Corporate Debtors by the Tribunal on specific dates. 2. The State Bank of India, Coimbatore Stressed Assets Management Branch, represented by Assistant General Manager Mr. Murugan, filed the application. The demand on the personal guarantor was made on 17.11.2021, and the Deeds of Guarantee executed on specific dates were enclosed with the application. The Demand Notice under Rule 7(1) of the Insolvency and Bankruptcy Rules, 2019, along with the Record of Default, supported the initiation of proceedings based on the default date of 17.04.2016. 3. The Respondent was duly notified, but no representation was made during the hearing. Consequently, the Respondent was set ex-parte, and no application was filed to set aside this order. The Tribunal referred to the principles of natural justice and a judgment by the NCLAT regarding the process to be followed after filing an application under Section 95 of the IBC, 2016. 4. The Financial Creditor recommended an Interim Resolution Professional (IRP) for the case. The Tribunal directed the Financial Creditor to serve a copy of the application to the IRP for preparing the required Report under Section 99 of the IBC, 2016. The Resolution Professional was instructed to examine the application and submit a report within the specified timeframe. The matter was scheduled for further proceedings on a specific date for the filing of the IRP's Report.
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