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TMI Blog2021 (9) TMI 1115X X X X Extracts X X X X X X X X Extracts X X X X ..... ysical haring on 18.08.2020, the matter could not be heard and was adjourned to 07.10.2020. On 07.10.2020, Corporate Debtor was directed to file affidavit in reply which had not been filed even after expiry of one and half years from the date of filing of application. It was also held that contentions raised by the Corporate Debtor in I.A. 513 of 2019 shall be considered along with main application. On 23.11.2020, it was observed in the daily proceeding order that Corporate Debtor in spite of granting of ample opportunities to file reply, did not do so and one last opportunity was given. On 09.12.2020, during the course of hearing, the voice of the Learned Counsel for the Corporate Debtor was not audible. On 10.12.2020, both were heard in part. On 11.01.2021, at the request of the Corporate Debtor, the matter was adjourned to 03.02.2021. On 03.02.2021, pleadings were held to be completed. Again, the matter was adjourned for 12.04.2021 for physical hearing. However, due to COVID issues, the matter could not be heard. The matter was again adjourned to 21.06.2021. On that day, the matter was adjourned to 26.07.2021 and parties were directed to upload the pleadings on E-portal. On 26.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us clauses of the guarantees as well as terms of resolution plan wherein it was stated that approval of resolution plan would not result into extinguishment of liability of the Corporate Debtor as corporate guarantor. Learned Counsel further placed strong reliance on the decision of the Hon'ble Supreme Court in Lalit Kumar Jain vs. Union of India vide order dated 21 May, 2021 wherein it was held that approval of resolution plan does not if so-facto discharge guarantor or surety of his liability which arises out of independent contract. Thereafter, Learned Counsel placed reliance on the decision of the Hon'ble NCLAT in the case of State Bank of India vs. Athena Energy Ventures Pvt. Ltd. in Company Appeal (AT) (Ins) No. 633 of 2020 wherein it was held that application against the principal borrower and guarantor could be filed and pursued simultaneously. It was also pleaded that in the present case, there is no question of double dip or unjust enrichment by the Applicant as the financial creditor is seeking recovery of the balance amount only after approval of the resolution plan. 4. In the written submission filed by the Corporate Debtor, it has been pleaded that the allege ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n placed in the decision of the Hon'ble Supreme Court in the case of State Bank of India Vs. Ramakrishnan & Anr. (2018) 17 SCC 394 and few other judicial decisions. It has also been reiterated that it is not in dispute that there exist debtor outstanding amount payable by the Respondent. It has also been stated that there is no truth or any basis to say that record of default provided by Information Utility is incorrect. It has also been stated that section 60(2) of IBC, 2016 clearly provides for proceeding to be initiated against the guarantor even without proceeding against the Corporate Debtor or also if any proceeding pending against Corporate Debtor under the provisions of IBC, 2016. The Applicant has also countered various arguments of the Corporate Debtor as well as placed reliance on various judicial decisions to support its claim. 6. We have considered the submissions made by the Applicant/Financial Creditor, affidavit in reply, rejoinder and submissions made by both sides. After considering the facts and circumstances of the case before us, it is evident that there is a debt which is due and payable, both in law and in fact, and default has occurred, hence, prima-fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... approves the Resolution Plan under Sub-Section (1) of Section 31 or passes an order for liquidation of Corporate Debtor under Section 33, as the case may be. 4. That the Bench hereby prohibits the institution of suits or continuation of pending suit or proceedings against the Corporate Debtor including execution of any judgment, decree or order in any Court of law. Tribunal, Arbitration Panel or other Authority(s), transferring, encumbering, alienating or disposing of by the Corporate Debtor any of its assets or any legal right or beneficial interest therein; any action to foreclose, recover or enforce any security interest created by the Corporate Debtor in respect of its property including any action under the SARFAESI Act, 2002 the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the Corporate Debtor. 5. Further, litigation or any application, if any, is pending before any competent Court of law under the provisions of the SARFAESI Act and RDB Act, prior to pronouncement of this order such proceedings are expected to be dealt with in accordance with law r.w. Section 14 and Section 238 of the Insolvency & Bankruptcy Cod ..... X X X X Extracts X X X X X X X X Extracts X X X X
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