9911796707
TMI Blog2022 (11) TMI 905X X X X Extracts X X X X X X X X Extracts X X X X ..... Guarantee dated 09.01.2017 to secure funds availed by a company named Meher Miracles Pvt. Ltd from Sourya Containers. Under the said deed of Guarantee an amount of Rs.1,00,00,000 (Rupees One Crore Only) was availed by Meher Miracles, consequently an amount of Rs.1,50,00,000 (Rupees One Crore Fifty Lakh only) was agreed to be repaid within a period of 6 months. 3. The Applicant submits that at no point did the Respondent have appropriate authorization from Original Respondent No.1 Aranca (Mumbai) Pvt. Ltd. to execute the said Corporate Guarantee. 4. Pursuant to failure on part of the said Meher Miracles to make repayments to Sourya Containers, the Corporate Guarantee was invoked vide letter dated 11.06.2019 upon the Original Respondent No.1 to make payment of Rs.1,50,00,000/- with interest and tax. In response to the said letter, a letter dated 20.06.2019 was addressed by Original Respondent No.1 to Sourya Containers that when the letter was received neither Mr. Hemendra Aran nor Ms. Gitanjali Sinha were directors of Original Respondent 1. Further the Original Respondent No.1 had no knowledge whatsoever about the existence of the Corporate Guarantee. Thereafter, a second notice da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the any mismanagement has infact been done by the Respondent herein. Submissions advanced by the Respondent: 12. The Respondent submits that the Application is misconceived in law and ought to be rejected on the ground that the Hon'ble NCLAT has held vide Order dated 19.02.2018 the proceedings of the Company Petition have been expedited and the Company Petition is pending final hearing. The Hon'ble NCLAT further directed that the pending IA's can be taken up together while deciding the Company Petition. 13. Further, the Respondent submits that in any case no orders can be passed in the present proceedings relating to Section 7 proceedings. The present proceedings are completely alien and distinct from the Section 7 proceedings. The Respondent herein is not a party to the Section 7 proceedings and therefore the Applicant cannot seek reliefs incidental with the Section 7 proceedings herein. 14. The Respondent states that the present Petition is filed to thwart the hearing of the Company Petition wherein the Respondent herein has alleged oppression and mismanagement. 15. The Respondent submits that the following events culminated to the execution of the Corporate Guarantee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoked the Corporate Guarantee issued by the Respondent on behalf of the Aranca (Mumbai) Pvt. Ltd. by his notice Dated 25.08.2020, and called upon Aranca (Mumbai) Pvt. Ltd to make payment of Rs. 3,94,99,355/- computed as on August 24.08.2020. Aranca (Mumbai) Pvt. Ltd. replied to the aforesaid letter thereby denying the liability and sought for a copy of the Corporate Guarantee. 24. Thereafter, Mr. Vikram Kumar through his Advocate addressed a letter to Aranca (Mumbai) Pvt. Ltd. on 28.09.2020 under the cover of which a copy of the Corporate Guarantee was shared. 25. In response to the same, Aranca (Mumbai) Pvt. Ltd. addressed the letter to Mr. Vikram Kumar, Advocate on 20.10.2020 inter-alia stating that they had not issued the Corporate Guarantee and it is a fraudulent document. Thus, nothing is due and payable by Aranca (Mumbai) Pvt. Ltd. to Mr. Vikram Kumar. 26. In these circumstances, Mr. Vikram Kumar filed an Insolvency Petition Under section 7 of the Insolvency & Bankruptcy Code, 2016, seeking to initiate for Insolvency Resolution Process for Aranca (Mumbai) Pvt. Ltd. The Petition was stated to be heard at length and an order was reserved on March 2022. However, due to rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not undertaken to dilute the Respondent's shareholding since he was at liberty to subscribe to shares in the said rights issue. Even at the time granting Interim relief in CP No. 755 of 2017 this Adjudicating Authority vide its Order dated 10.01.2018 did not grant stay on the rights issue, the Hon'ble NCLAT vide Order dated 19.02.2018 upheld the decision of the NCLT. 35. Pursuant to Section 7 Petition Aranca (Mumbai) Private Ltd. was exposed to the possibility of dragged into CIRP on account of the conduct of the Respondent. In any event, the Respondent is exposed to liability of at least Rs.3,94,99,355/- which is an amount claimed by Mr. Vikram Kumar in the Section 7 petition. 36. In the circumstances, the Respondent did not approach the NCLT with clean hands and has suppressed material information. We direct the Respondent to indemnify Aranca (Mumbai) Private Ltd. from any liability arising from signing of the unauthorised, purported Corporate Guarantee by the Respondent contrary to Section 185 of the Companies Act, 2013 that is all liabilities arising out of the purported transactions with M/s Sourya Containers leasing Company ought to be borne solely by the Respondent. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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