9911796707
TMI Blog2020 (3) TMI 1185X X X X Extracts X X X X X X X X Extracts X X X X ..... e barred. He pointed out date of default as 03.01.2010 and this proceeding is filed on 13.02.2019. According to him, it is time barred in view of the Hon'ble Supreme Court Ruling in case of Gaurav Hargovindbhai Dave V/s. Asset Reconstruction Company (India) Ltd. &Anr. (Civil Appeal No. 4952 of 2019.)" 9. "We have gone through the Ruling. We hold that this Ruling is not applicable in this case. In case before Hon'ble Supreme Court, the facts were after the date of default in the year 2011, there was no acknowledgment of debt by the Corporate Debtor in that proceeding. In this case, after the default in the year 2010, not only original borrower but also the Corporate Debtor admitted and acknowledgement the debt even in the year 2018. This proceeding is filed within period of limitation." 10. "Ld. Counsel for the Corporate Debtor submitted that he cannot be the Corporate Debtor in view of the definition of corporate guarantor as stated in Section 5A of IBC,2016. According to him, since his client is guarantor to the individual and not corporate person, no proceeding can lie again his client under IBC,2016. We have considered about his above submission. Section 5A of IBC,2016 stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Counsel for the Appellant refers to the ' Report of the Insolvency Law Committee' (March,2018 - Ministry of Corporate Affairs, Government of India) whereby and whereunder at Paragraph 23.1 it is mentioned as under: 23.1 " Section 60 of the Code requires that the Adjudicating Authority for the corporate debtor and personal guarantors should be the NCLT which has territorial jurisdiction over the place where the registered office of the corporate debtor is located. This creates a link between the insolvency resolution or bankruptcy processes of the corporate debtor and the personal guarantor such that the matters relating to the same debt are dealt in the same tribunal. However, no such link is present between the insolvency resolution or liquidation processes of the corporate debtor and the corporate guarantor. It was decided that Section60 may be suitably amended to provide for the same NCLT to deal with the insolvency resolution or liquidation processes of the corporate debtor and its corporate guarantor. For this purpose, the term 'corporate guarantor' will also be defined." 7. The Learned Counsel for the Appellant points out that Section 5A of the Code is clear, unequi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent/Bank that M/s Surana Metals Ltd. comes within the purview of 'Corporate Debtor' and the first Respondent/Bank comes within the ambit of 'Financial Creditor' of M/s Surana Metals Ltd. '(Corporate Debtor)' and therefore, the application under Section 7 of the Code filed by the first Respondent/Bank is perfectly maintainable in law. 14. The Learned counsel for the first Respondent takes stand that the Corporate Guarantor (M/s Surana Metals Ltd.) had duly executed the Letters of the Guarantors dated 2.2.2007,17.2.2007 and 3.8.2008 in respect of the loan facilities signed by the Bank to M/s. Mahaveer Construction, thereby comes within the purview of the definition 'Corporate Guarantor' as per section 5(A) of the I&B Code. Added further, the 'Corporate Guarantor' had acknowledged its debt against execution of the Letters of Guarantee and in its reply dated 8.12.2018 is not against the demand notice dated 3.12.2018 issued by the Bank. 15. The Learned counsel for the first Respondent/Bank for Financial Creditor submits that the limitation for filing of an application against the 'CorporateGuarantor' begins from the acknowledgement i.e. 8.12.2018, furnished by the 'Corporate Guarantor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Laxmi Pat Surana 140 4. 24.10.2016 Laxmi Pat Surana 198 5. 08.12.2018 Surana Metals Ltd. 141 Further, the Corporate Debtor had acknowledge that the reply dated 8.12.2018 sent against demand notice dated 3.12.2018 was issued by the Bank for initiation of the proceedings under the Code. In this connection the Learned Counsel for the first Respondent refers to Section 145 of the Indian Contract Act,1872 to the fact that in every 'contract' of 'Guarantee', there is an implied promise by the 'Principal Debtor' to indemnify the surety. 20. The Learned Counsel for the Appellant contends that the Appellant is also the Proprietor of the firm of M/s Mahaveer Construction and that the proprietorship Firm has no separate legal existence. It is not dispute that the term Loan No. - 1 was disbursed to an extent of Rs. 9,60,00,000/- on 11.9.2007 and the second term Loan was disbursed to an extent of Rs. 2,45,00,000/- on 11.9.2008 and the total sum disbursed was Rs. 12,05,00,000/-.The Letter of Guarantee for Rs. 9,60,00,000/- was given on 2.02.2007, and on 17.02.2007, Letter of Guarantee was issued by the Corporate Debtor. On 30.8.2008 the Letter of Guarantee for R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... creditor to initiate CIRP against Corporate Debtor. Be it noted that a legal remedy must be alive for a legislatively fixed period of time as per decision N. Balakrishnan V/s M. Krishnamurthy 1998 7 SCC Page 123. 25.In B.K. Educational services Ltd. V/s Parag Gupta and Associates (Civil Appeal No. 23988/17) it is held that 'the right to sue therefore accrues when a default takes place. If the default had occurred three years before the date of filing of an application, the same will be barred under Art.137 of the Limitation Act, 1963. 26.In the decision of Hon'ble Supreme Court Jignesh shah and Anr. V/s Union of India &Anr. 2019 10 SCC 750 at paragraph 28 it is among other things observed as under: "Here again, the trigger point is the date on which default is committed, on account of which the company is unable to pay its debts. This again is a fixed date that can be proved on the facts of each case. Thus, Section 433(e) read with section 434 of the Companies Act, 1956 would show that the trigger point for the purpose of limitation for filing of a winding-up petition under Section 433(e) would be the date of default in payment of the debt in any of the three situations mentio ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
