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2022 (8) TMI 1158 - AT - Insolvency and BankruptcyCIRP - Period of limitation - NCLT admitted the application - personal Guarantor to Corporate Debtor - Australian National - lack of any Agreement of Guarantee - invalidity of any such Guarantee, even if issued - non-performing assets - date of default - Regulation 3A of the Foreign Exchange Management (Guarantees) Regulations, 2000 - HELD THAT - In the instant case, the Statement of Account filed together with the Company Petition before the Adjudicating Authority proves that the Sum is due and payable by the Personal Guarantor. Added further, the execution of Revival Letter dated 10.08.2016 by the Appellant / Personal Guarantor, acknowledging its Liability, in respect of the 1st Respondent/Bank/Financial Creditor, after two years from the date of Execution of the Guarantee Agreement, acknowledging its Liability shows the Subsistence of a Valid Guarantee Agreement. In terms of the ingredients of Section 95 of the I B Code, 2016, the 1st Respondent/Bank has, in the instant case, proved the Debt and Default committed by the Appellant/Personal Guarantor and undoubtedly, the Default is more than Rs.1,000/- and that the Company Petition, on the file of the Adjudicating Authority, is well within the Limitation Period which is evident from the Statement of Account, Guarantee Agreements, Revival Letters, Loan Documents, which are quite explicit, self-explanatory and admits of no exception, as opined by this Tribunal. This Tribunal holds that the Appellant as a Personal Guarantor of the Corporate Debtor, cannot wriggle out of his Liability under the Guarantee Deed. Whether the Impugned Order passed by the Adjudicating Authority is not a speaking one and is in negation of the principles of natural justice? - HELD THAT - It cannot be brushed aside that a reasoned/speaking order, passed by an Adjudicating Authority, will have an appearance of justice. An unreasoned order will be just and valid from the point of view of the Authority who passes the same, but to the Affected Person, the said order is an unreasonable and an illegal one - An Appeal, in law, is an elongation of Original Proceedings of the Adjudicating Authority and an Appellate Tribunal, has same powers of an Adjudicating Authority (Tribunal). In fact, the Propriety, Legality, Validity of the impugned order, passed by an Adjudicating Authority (Tribunal) is the primary consideration in an Appeal. Because of the fact that the Appellant/Personal Guarantor had executed the Revival Letters, the Revival Letter dated 10.08.2016 acknowledging its liability in respect of the 1st Respondent/Bank/Financial Creditor (after 2 years from the date of execution of Guarantee Agreement), the Petition on the file of the Adjudicating Authority (National Company Law Tribunal, Hyderabad Bench I, Hyderabad), is well within the period of limitation and therefore, the Contra Plea taken on behalf of the Appellant/Personal Guarantor, is not acceded to by this Tribunal. The Appellant/Personal Guarantor (in the instant case), whether he resides in India or outside India, when a Petition is filed against him, as Personal Guarantor of the Corporate Debtor, the Adjudicating Authority, (National Company Law Tribunal) has jurisdiction, in whose territorial jurisdiction, the Registered Office of the Corporate Person is located, the right showered upon the 1st Respondent/Bank/Financial Creditor under Section 95 (1) of the Code being an independent and special proceeding, which can be invoked by the Financial Creditor (without any fetter), despite, availability of any other Fora, as per Section 60 (1) of the Code, the residence of Personal Guarantor is not taken into account when proceedings against Personal Guarantor are initiated, without any hesitation, comes to a consequent conclusion that the view taken by the Adjudicating Authority, (National Company Law Tribunal, Hyderabad Bench) in admitting CP(IB) No. 401/95 (IBC) /HDB/2020, is free from any legal flaws. Appeal dismissed.
Issues Involved:
1. Validity of the Guarantee Agreement. 2. Applicability of the Foreign Exchange Management Act (FEMA) regulations. 3. Limitation period for initiating insolvency proceedings. 4. Compliance with principles of natural justice. Analysis: 1. Validity of the Guarantee Agreement: The Appellant argued that the Guarantee Agreement dated 13.05.2014 was invalid as it was executed without the Reserve Bank of India's (RBI) permission, which is required under Regulation 3A of the Foreign Exchange Management (Guarantees) Regulations, 2000. The Appellant, an Australian national, claimed he could not guarantee an Indian debt without this permission. The Respondent countered that the Appellant had executed the Guarantee Agreement representing himself as an Indian resident, and all correspondence was sent to his Indian address. The Tribunal held that the Appellant could not escape liability under the Guarantee Deed, emphasizing that the I & B Code, 2016, overrides other laws. 2. Applicability of FEMA Regulations: The Appellant contended that the guarantee was void under Section 23 of the Indian Contract Act, 1872, due to non-compliance with FEMA regulations. The Tribunal noted that the Appellant did not raise this issue in his counter before the Adjudicating Authority. Furthermore, the transaction of issuing a guarantee is a capital transaction under FEMA, and a guarantee by a resident outside India is permitted as a capital account transaction. The Tribunal found no evidence that the Appellant was not an Indian citizen and upheld the validity of the Guarantee Agreement. 3. Limitation Period for Initiating Insolvency Proceedings: The Appellant argued that the debt was barred by limitation, as the Corporate Debtor's account became a Non-Performing Asset (NPA) on 26.12.2015, and the application was filed in 2020. The Tribunal referred to the Revival Letter dated 10.08.2016, executed by the Appellant, acknowledging the liability, which extended the limitation period. The Tribunal concluded that the application was within the limitation period, supported by the Statement of Account, Guarantee Agreements, and Revival Letters. 4. Compliance with Principles of Natural Justice: The Appellant claimed that the Adjudicating Authority did not consider his objections and submissions, violating principles of natural justice. The Tribunal emphasized that the Adjudicating Authority must pass reasoned orders addressing the parties' contentions. However, the Tribunal found that the Appellant was served with notice and given an opportunity to contest, which he did not avail. The Tribunal affirmed that the Adjudicating Authority's order was free from legal flaws and complied with natural justice principles. Conclusion: The Tribunal dismissed the appeal, upholding the Adjudicating Authority's decision to admit the insolvency resolution process against the Appellant and declared the moratorium. The Tribunal found no merit in the Appellant's arguments regarding the invalidity of the Guarantee Agreement, non-compliance with FEMA regulations, limitation period, and violation of natural justice principles. The connected interim applications were also closed.
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