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TMI Blog2022 (7) TMI 770X X X X Extracts X X X X X X X X Extracts X X X X ..... as on 10.09.2021. The application is hereby admitted under Section 100 of the IB Code, 2016 - The Insolvency Resolution Process is initiated against the Respondent/Guarantor and the moratorium is declared, which begins with the date of admission of the application and shall cease to have effect at the end of the period of the 180 days. - IA-2497/PB/2022 in C.P. No. IB-745(PB)/2021 - - - Dated:- 5-7-2022 - R. Sudhakar, J. (President) And Avinash K. Srivastava, Member (T) For Appearing Parties: Ekta Choudhary, Ishwar Mohapatra, Vinod Chourasia, Advocates and Party-in-Person ORDER Avinash K. Srivastava, Member (T) 1. This is an application filed by State Bank of India under Section 95 r/w. Rule 7(2) of the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantor to Corporate Debtor) Rules, 2019. The prayer made is to initiate the Insolvency Resolution Process against the Respondent/Guarantor Mr. Nawal Kishore Saxena, who stood as Personal Guarantor to the various credit facilities availed by the Corporate Debtor namely M/s. Zillion Infra projects Pvt. Ltd. for total outstanding debt of Rs. 90,73,7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssuance of Demand Notice dated 09.09.2021 under clause (b) of Section 95(4) issued in Form-B, under Rule 7(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantor to Corporate Debtor) Rules, 2019. 8. The Respondent/Guarantor sent his response dated 28.09.2021 to the Demand Notice, which is annexed as Annexure P-28 of the CP-IB-745(PB)/2021. In its reply, the Respondent has stated that there is no Privity of contract between State Bank of India and the Respondent as the deed of Guarantee dated 09.09.2016 was executed by the Guarantor alongwith the other Guarantors in favour of SBICAP Trustee Co. Ltd. and that the Personal Guarantor has never executed any deed with SBI so as to entail any alleged liability under the IBC. Further, that there is no invocation of any guarantee by State Bank of India against the Respondent, since, the legal demand notice dated 14.06.2018 does not contain any reference of any deed of guarantee executed between State Bank of India and the Respondent/Guarantor, the Demand Notice dated 09.09.2021 is time barred, since the same has been issued after more than three years of the all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the applicant who has invoked personal guarantee. ii. The guarantee cannot be invoked as the debt is time barred as the date of default was 29.06.2018 and the demand notice dated 09/09/2021 has been served after more than three years from the alleged date of default. iii. In para 9 of his reply the guarantor has stated that the principal amount as per loan statement attached with the application depicts Rs. 45,67,30,046.83 whereas the amount mentioned in Part-III (Pg 24) of the application claims principal amount of Rs. 52,05,62,213.80. iv. The guarantor has stated that the amount cannot be claimed from them as the Bank is a part of CoC which has approved the Resolution Plan of the CD and the plan is pending for the approval of this Adjudicating Authority and have also relied upon the judgment of DRT Ahmedabad dated 11.03.2022 in the matter of M/s. Arcelor Mittal India Pvt. Ltd. vs. SBI and Others bearing OA/650/2018, wherein, it was held that, to invoke personal guarantees by a secured creditor, underlying debt due from the borrower acts as a precondition. 14. The Resolution Professional herein filed its report in terms of Section 99 of IBC vide IA-2497/2022 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loan account attached at Annexure P-32 Page 372 of the petition deputes about Rs. 45.67 crores, whereas the amount mentioned in the Part-III (page 24 of the petition) claims Principal amount is about Rs. 52.05 crores. The contention of the Guarantor is incorrect as the amount mentioned in the Bank Statement is calculated upto 03.03.2018, whereas the amount mentioned in the Part-III of the petition is calculated as on 10.09.2021. 20. Further the contention of the Guarantor is that the amount cannot be claimed from them, as the Bank is a part of the CoC, which has approved the Resolution Plan and has also relied upon the judgment of DRT, Ahmadabad dated 11.03.2022 in the matter of Arcelor Mittal India Pvt. Ltd. vs. SBI Ors., wherein it was held that, to invoke the Personal Guarantees by a secured creditor, underlying debt due from the borrower, acts as a precondition. The reliance of the Respondent is misplaced as in this case the debt will not get extinguished and thus as per law, the bank can seek amount from the borrowers as well as from the Guarantors. 21. Therefore, based on the reasons recorded in the report submitted by the Resolution Professional, as also the argumen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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