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TMI Blog2018 (9) TMI 2132X X X X Extracts X X X X X X X X Extracts X X X X ..... the Indian Contract Act, 1872 cannot be applied upon the Debtor/Co-obligor. If the Resolution Plan got approved in the case of Principal Borrower, then, in that case the Debt would have been Discharged. But here the case is not so. Since the Debtor/Co-obligor is a co-obligor to the VIL he is bound to fulfil an obligation of the VIL. Further VIL is not a Third Party to the Debtor/Co-obligor thus jointly to be called as Guarantor to the Principal Debtor/Co-obligor. The Bench is also acquainted with the decision of this very Bench in the case of Schweitzer Systemtek India Private Limited [ 2017 (8) TMI 1678 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] wherein it was held that the Moratorium is only applicable to the assets of the Debtor/Co-obligor and not to the assets of the Guarantors - And also with the decision of this very Bench in the case of Bell Finvest (India) Limited v. Asha s Hospitality and Management Facility Private Limited wherein this Bench has Admitted the Insolvency Application against the Corporate Guarantor and also against the Principal Borrower. There is no cause for dissenting from the co-ordinate Benches and therefore this Petition/Application deserves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... co-obliged the amount borrows by the VIL. 4.2. After sanctioning and disbursing of the above mentioned facilities the Account of the VIL has turned into Non-Performing Assets (NPA) on 30.04.2017. 4.3. The RTL was signed by the 12 Co-obligors along-with the VIL. Since the VIL has defaulted in making the re-payment of the availed loan facilities the Financial Creditor has filed Insolvency Petition/Application against each of the Company praying for the commencement of the CIRP. The Petition/Application against principal borrower was filed on 01.01.2018 and thereafter this Petition/Application has been filed. 5. Submissions by the Financial Creditor: 5.1. The Learned Sr. Counsel for the Financial Creditor has submitted that pursuant to the request of the VIL along-with the Debtor/Co-obligor, the Financial Creditor has duly sanctioned and disbursed the loan amount in aforesaid manner. 5.2. It is further submitted that the Insolvency Petition/Application against the VIL was Admitted for the commencement of the CIRP by this very Bench on 06.06.2018. 5.3. It is further submitted that, in light of the commencement of the CIRP against the Principal Borrower, admittedly there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d position that the Debtor/Co-obligor is a co-obligor to the VIL in respect of availed Facilities and has duly signed the RTL. 7.4. Considering the above facts, it is noticed that the nature of Debt is a "Financial Debt" as defined under section 5 (8) of the Code. It has also been established that admittedly there is a "Default" as defined under section 3 (12) of the Code on the part of the Debtor/Co-obligor. 7.5. That, on the basis of the evidences on record, it is noticed that the Financial Creditor has duly sanctioned the Facilities and duly disbursed those to the Principal Borrower but there is non-payment of Debt on the part of, both, the Principal Borrower and the Debtor/Co-obligor. 7.6. That, before coming to final decision it is appropriate to frame a question of law that "Whether the Insolvency Application can be Admitted against the Co-obligor where the CIRP against the Principal Borrower is already commenced?" 7.7. To answer this question, it is appropriate to place on record certain facts. This Petition/Application is filed much before the passing of Resolution Plan or any Order for Liquidation in the case of Principal Borrower henc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no cause for dissenting from the co-ordinate Benches and therefore in my opinion this Petition/Application deserves to be Admitted. 7.12. Further, before passing a concluding remark we want to place a reliance on the decision of the Hon'ble NCLAT in State Bank of India v. D.S. Rajendra Kumar (Company Appeal (AT) (Insolvency) No. 87 of 2018) dated 18.04.2018 wherein it is held as under: "5.....However, it is made clear that order of 'Moratorium ' will be applicable only to the proceedings against the 'Corporate Debtor/Co-obligor' and the 'Personal Guarantor', if pending before any court of law/Tribunal or authority but the order of Moratorium 'will not be applicable for filing application for triggering Corporate Insolvency Resolution Process' under Sections 7 or 9 or 10 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as "I & B Code ") against the Guarantor' or the 'Personal Guarantor' under Section 60(2)." 7.13. Further, the Bench is also acquainted with the decision of this very Bench in the case of 'Schweitzer Systemtek India Private Limited' wherein it was held that the Morat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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